BERMUDA
|
98-0438382
|
(State
or other jurisdiction of incorporation or organization)
|
(IRS
Employer Identification No.)
|
Mintflower
Place, 4th floor
Par-La-Ville
Rd, Hamilton, Bermuda
|
HM
08 Bermuda
|
(Address
of principal executive offices)
|
(Zip
Code)
|
Large
accelerated filer
x
|
Accelerated
filer
o
|
Non-accelerated
filer
o
|
Smaller
reporting company
o
|
Document
|
Location
in Form 10-K in Which Document is Incorporated
|
Registrant’s
Proxy Statement for the 2010 Annual General Meeting of
Shareholders
|
Part
III
|
Page
|
||||
PART
I
|
||||
2
|
||||
27
|
||||
36
|
||||
37
|
||||
38
|
||||
38
|
||||
PART
II
|
||||
39
|
||||
41
|
||||
43
|
||||
111
|
||||
113
|
||||
190
|
||||
190
|
||||
194
|
||||
PART
III
|
||||
194
|
||||
194
|
||||
19
4
|
||||
194
|
||||
194
|
||||
PART
IV
|
||||
195
|
||||
205
|
BUSINESS
|
Company
Name
|
Effective
Voting Interest
|
Type
of Affiliate
|
TV
Channels
|
||
Bulgaria
|
|||||
Operating Companies:
|
|||||
LG
Consult EOOD
|
80.0%
|
Consolidated
Subsidiary
|
N/A
|
||
Ring
TV EAD (“Ring TV”)
|
80.0%
|
Consolidated
Subsidiary
|
RING
TV
|
||
License Company:
|
|||||
PRO
BG MEDIA EOOD (“Pro.bg”)
|
80.0%
|
Consolidated
Subsidiary
|
PRO.BG
|
||
Croatia
|
|||||
License Company:
|
|||||
Nova
TV d.d. (“Nova TV (Croatia)”)
|
100.0%
|
Consolidated
Subsidiary
|
NOVA
TV (Croatia)
|
||
Czech
Republic
|
|||||
License Company:
|
|||||
CET
21 spol. sr.o. (“CET 21”)
|
100.0%
|
Consolidated
Subsidiary
|
TV
NOVA
(Czech
Republic),
NOVA
CINEMA and
NOVA
SPORT
MTV
CZECH
|
||
Romania
|
|||||
Operating Companies:
|
|||||
Media
Pro International S.A. (“MPI”)
|
95.0%
|
Consolidated
Subsidiary
|
N/A
|
||
Media
Vision S.R.L. (“Media Vision”)
|
95.0%
|
Consolidated
Subsidiary
|
N/A
|
||
License Company:
|
|||||
Pro
TV S.A. (“Pro TV”)
|
95.0%
|
Consolidated
Subsidiary
|
PRO
TV, ACASA, PRO CINEMA, PRO TV INTERNATIONAL, MTV ROMANIA and
SPORT.RO
|
||
Slovak
Republic
|
|||||
License Company:
|
|||||
MARKIZA-SLOVAKIA,
spol. s r.o. (“Markiza”)
|
100.0%
|
Consolidated
Subsidiary
|
TV
MARKIZA, DOMA
|
||
Slovenia
|
|||||
Operating Company:
|
|||||
Produkcija
Plus d.o.o. (“Pro Plus”)
|
100.0%
|
Consolidated
Subsidiary
|
N/A
|
||
License Companies:
|
|||||
POP
TV d.o.o. (“Pop TV”)
|
100.0%
|
Consolidated
Subsidiary
|
POP
TV
|
||
TELEVIDEO
d.o.o. (“Televideo”)
|
100.0%
|
Consolidated
Subsidiary
|
TV
PIKA
|
||
Kanal
A d.o.o. (“Kanal A”)
|
100.0%
|
Consolidated
Subsidiary
|
KANAL
A
|
||
Ukraine
|
|||||
Operating Companies:
|
|||||
Innova
Film GmbH (“Innova”)
|
100.0%
|
Consolidated
Subsidiary
|
N/A
|
||
International
Media Services Ltd. (“IMS”)
|
100.0%
|
Consolidated
Subsidiary
|
N/A
|
Company Name
|
Effective Voting Interest
|
Type of Affiliate
|
TV Channels
|
1+1
Production
|
100.0%
|
Consolidated
Subsidiary
|
N/A
|
TV
Media Planet Limited (“TV Media Planet”)
|
100.0%
|
Consolidated
Subsidiary
|
N/A
|
License Company:
|
|||
Studio
1+1 LLC (“Studio 1+1”)
|
100.0%
|
Consolidated
Subsidiary
|
STUDIO
1+1
STUDIO
1+1 INTERNATIONAL
|
Gravis
– Kino LLC (“Gravis-Kino”)
|
100.0%
|
Consolidated
Subsidiary
|
KINO
|
Tor
LLC (“Tor”)
|
100.0%
|
Consolidated
Subsidiary
|
KINO
|
Zhysa
LLC (“Zhysa”)
|
100.0%
|
Consolidated
Subsidiary
|
KINO
|
Country
|
TV
Channels
|
Launch
Date
|
Technical
Reach (1)
|
2009 All
Day Audience
Share (2)
|
Market
Rank (2)
|
|||||||||
Bulgaria
|
PRO.BG
|
November
2007 (3)
|
81.6% | 2.6% | 6 | |||||||||
RING.BG
|
September
1998 (3)
|
62.5% | 0.7% | 13 | ||||||||||
Croatia
|
NOVA
TV
(Croatia)
|
August
2000 (4)
|
89.0% | 22.8% | 3 | |||||||||
Czech
Republic
|
TV
NOVA
(Czech
Republic)
|
February
1994 (5)
|
99.5% | 41.6% | 1 | |||||||||
NOVA
SPORT
|
April
2002 (6)
|
27.3% | n/a | n/a | ||||||||||
NOVA
CINEMA
|
December
2007
|
59.0% | 2.1% | 5 | ||||||||||
MTV
CZECH
|
November
2009
|
n/a | n/a | n/a | ||||||||||
Romania
|
PRO
TV
|
December
1995
|
98.6% | 17.2% | 1 | |||||||||
ACASA
|
February
1998
|
90.0% | 5.9% | 3 | ||||||||||
PRO
CINEMA
|
April
2004
|
76.9% | 1.9% | 11 | ||||||||||
SPORT.RO
|
July
2003 (7)
|
65.9% | 1.8% | 12 | ||||||||||
MTV
ROMANIA
|
June
2002 (8)
|
57.8% | 0.6% | 30 | ||||||||||
Slovak
Republic
|
TV
MARKIZA
|
August
1996
|
99.2% | 31.2% | 1 | |||||||||
DOMA
|
August
2009
|
54.1% | 0.7% | 4 | ||||||||||
Slovenia
|
POP
TV
|
December
1995
|
95.2% | 25.6% | 1 | |||||||||
KANAL
A
|
October
1991 (9)
|
94.0% | 13.0% | 3 | ||||||||||
TV
PIKA
|
April
1998 (10)
|
66.0% | 1.0% | 6 | ||||||||||
Ukraine
|
STUDIO
1+1
|
January
1997
|
98.8% | 9.2% | 4 | |||||||||
KINO
|
August
1993 (11)
|
65.7% | 0.7% | 15 |
Country
|
Population
(in millions)
(1)
|
Technical
reach
(in millions)
(2)
|
Television
Households Reached
(in millions)
(3)
|
Television
Households
Reached (%)
(3)
|
Cable
Penetration
(3)
|
|||||||||||||||
Bulgaria
|
7.5 | 7.2 | 2.7 | 99% | 57% | |||||||||||||||
Croatia
|
4.4 | 4.1 | 1.3 | 97% | 16% | |||||||||||||||
Czech
Republic
|
10.5 | 9.9 | 4.1 | 98% | 22% | |||||||||||||||
Romania
|
20.6 | 20.4 | 6.9 | 97% | 67% | |||||||||||||||
Slovak
Republic
|
5.4 | 5.1 | 1.6 | 99% | 46% | |||||||||||||||
Slovenia
|
2.0 | 1.9 | 0.7 | 99% | 70% | |||||||||||||||
Ukraine
|
46.1 | 43.4 | 18.6 | 99% | 57% | |||||||||||||||
Total
|
96.5 | 92.0 | 35.9 | |||||||||||||||||
2005
|
2006
|
2007
|
2008
|
2009
|
||||||||||||||||
PRO.BG
|
||||||||||||||||||||
All
day
|
- | - | 0.1% | 2.7% | 2.6% | |||||||||||||||
Prime
time
|
- | - | 0.1% | 2.4% | 2.6% | |||||||||||||||
RING.BG
|
||||||||||||||||||||
All
day
|
0.6% | 0.5% | 0.2% | 0.3% | 0.7% | |||||||||||||||
Prime
time
|
0.5% | 0.5% | 0.2% | 0.2% | 0.7% | |||||||||||||||
Source:
TNS.
|
Main
Television
Channels
|
Ownership
|
Year
of first
transmission
|
Signal
distribution
|
All
day audience
share
(2009)
|
Technical
reach
|
||||||
bTV
|
News
Corp
|
2000
|
Cable
/ Terrestrial / Satellite
|
33.0% | 99.9% | ||||||
NOVA
TV
|
MTG
|
1994
|
Cable
/ Terrestrial / Satellite
|
23.0% | 97.6% | ||||||
BNT
|
Public
television
|
1959
|
Cable
/ Terrestrial / Satellite
|
8.9% | 99.0% | ||||||
DIEMA
+
|
MTG
|
1999
|
Cable
/ Terrestrial / Satellite
|
2.8% | 70.8% | ||||||
PRO.BG
|
CME
|
2007
|
Cable
/ Terrestrial / Satellite
|
2.6% | 81.6% | ||||||
RING.BG
|
CME
|
1998
|
Cable
/ Satellite
|
0.7% | 62.5% | ||||||
Others
|
29.0% | ||||||||||
100% | |||||||||||
Source:
TNS.
|
2005
|
2006
|
2007
|
2008
|
2009
|
||||||||||||||||
All
day
|
14.0% | 15.7% | 18.7% | 22.5% | 22.8% | |||||||||||||||
Prime
time
|
14.5% | 17.3% | 19.7% | 25.3% | 27.4% | |||||||||||||||
Source:
AGB Nielsen Media Research.
|
Main
Television
Channels
|
Ownership
|
Year
of first
transmission
|
Signal
distribution
|
All
day audience
share
(2009)
|
Technical
reach
|
||||||
RTL
|
Bertelsmann
|
2004
|
Terrestrial
/ satellite / cable
|
26.2% | 97% | ||||||
HTV
1
|
Public
Television
|
1956
|
Terrestrial
/ satellite / cable
|
23.6% | 96% | ||||||
NOVA
TV (Croatia)
|
CME
|
2000
|
Terrestrial
/ satellite / cable
|
22.8% | 89% | ||||||
HTV
2
|
Public
Television
|
1972
|
Terrestrial
/ satellite / cable
|
12.8% | 96% | ||||||
Others
|
14.6% | ||||||||||
100.0% | |||||||||||
Source:
AGB Nielsen Media Research.
|
2005
|
2006
|
2007
|
2008
|
2009
|
||||||||||||||||
All
day
|
42.4% | 43.6% | 43.0% | 41.5% | 41.6% | |||||||||||||||
Prime
time
|
43.6% | 47.3% | 46.8% | 45.8% | 46.8% | |||||||||||||||
Source:
ATO – Mediaresearch.
|
Main
Television Channels
|
Ownership
|
Year
of first transmission
|
Signal
distribution
|
All
day audience share (2009)
|
Technical
reach
|
||||||
TV
NOVA (Czech Republic)
|
CME
|
1994
|
Terrestrial
/ satellite
|
41.6% | 99.5% | ||||||
TV
Prima
|
Modern
Times Group/Local owners
|
1993
|
Terrestrial
/ satellite
|
16.4% | 99.6% | ||||||
CT
1
|
Public
Television
|
1953
|
Terrestrial
/ satellite
|
15.7% | 97.5% | ||||||
CT
2
|
Public
Television
|
1970
|
Terrestrial
/ satellite
|
5.1% | 96.9% | ||||||
NOVA
CINEMA (1)
|
CME
|
2007
|
Terrestrial
/ satellite
|
2.1% | 59.0% | ||||||
NOVA
SPORT
|
CME
|
2002
|
Cable
/ satellite
|
-% | 27.3% | ||||||
Others
|
19.1% | ||||||||||
|
100.0% | ||||||||||
Source
: ATO – Mediaresearch.
|
|||||||||||
(1)
Technical Reach for NOVA CINEMA includes DVB-T
|
2005
|
2006
|
2007
|
2008
|
2009
|
||||||||||||||||
PRO
TV
|
||||||||||||||||||||
All
day
|
20.9% | 20.7% | 18.3% | 16.5% | 17.2% | |||||||||||||||
Prime
time
|
22.8% | 22.9% | 21.5% | 19.7% | 20.3% | |||||||||||||||
ACASA
|
||||||||||||||||||||
All
day
|
9.6% | 8.5% | 7.5% | 8.1% | 5.9% | |||||||||||||||
Prime
time
|
11.2% | 9.0% | 7.1% | 9.4% | 8.1% | |||||||||||||||
SPORT.RO
(1)
|
||||||||||||||||||||
All
day
|
1.5% | 1.5% | 1.7% | 1.6% | 1.8% | |||||||||||||||
Prime
time
|
1.4% | 1.3% | 1.3% | 1.2% | 1.6% | |||||||||||||||
PRO
CINEMA
|
||||||||||||||||||||
All
day
|
1.5% | 1.8% | 2.2% | 2.0% | 1.9% | |||||||||||||||
Prime
time
|
1.3% | 1.5% | 1.9% | 1.8% | 1.8% | |||||||||||||||
MTV
ROMANIA (2)
|
||||||||||||||||||||
All
day
|
0.8% | 0.8% | 0.9% | 0.6% | 0.6% | |||||||||||||||
Prime
time
|
0.5% | 0.5% | 0.6% | 0.5% | 0.4% | |||||||||||||||
Source:
GFK, TNS/AGB International.
(1)
We acquired SPORT.RO in December 2006.
(2)
We acquired the license to operate MTV ROMANIA in December
2007.
|
Main
Television Channels
|
Ownership
|
Year
of first transmission
|
Signal
distribution
|
All
day audience share (2009)
|
Technical
reach
|
||||||
PRO
TV
|
CME
|
1995
|
Terrestrial
/ satellite / cable
|
17.2% | 98.6% | ||||||
Antena
1
|
Local
owner
|
1993
|
Terrestrial
/ satellite / cable
|
11.5% | 93.8% | ||||||
ACASA
|
CME
|
1998
|
Satellite
/ cable
|
5.9% | 90.0% | ||||||
Prima
TV
|
SBS
|
1994
|
Terrestrial
/ satellite / cable
|
5.5% | 91.7% | ||||||
TVR
1
|
Public
Television
|
1956
|
Terrestrial
/ satellite / cable
|
3.4% | 99.5% | ||||||
PRO
CINEMA
|
CME
|
2004
|
Satellite
/ cable
|
1.9% | 76.9% | ||||||
TVR
2
|
Public
Television
|
1968
|
Terrestrial
/ satellite / cable
|
1.5% | 96.1% | ||||||
SPORT.RO
|
CME
|
2003
|
Satellite
/ cable
|
1.8% | 65.9% | ||||||
MTV
ROMANIA
|
CME
|
2002
|
Satellite
/ cable
|
0.6% | 57.8% | ||||||
Others
|
50.7% | ||||||||||
100.0% | |||||||||||
Source:
GFK, TNS/AGB International.
|
2005
|
2006
|
2007
|
2008
|
2009
|
||||||||||||||||
All
day
|
31.2% | 33.7% | 35.5% | 35.1% | 31.2% | |||||||||||||||
Prime
time
|
32.9% | 35.9% | 38.5% | 36.8% | 33.5% |
Main
Television
Channels
|
Ownership
|
Year
of first
transmission
|
Signal
distribution
|
All
day audience
share
(2009)
|
Technical
reach
|
||||||
TV
MARKIZA
|
CME
|
1996
|
Terrestrial
/ satellite / cable
|
31.2% | 99.2% | ||||||
TV
JOJ
|
Local
owner
|
2002
|
Terrestrial
/ satellite / cable
|
20.0% | 90.7% | ||||||
STV
1
|
Public
Television
|
1956
|
Terrestrial
/ satellite / cable
|
15.0% | 99.9% | ||||||
STV
2
|
Public
Television
|
1969
|
Terrestrial
/ satellite / cable
|
4.0% | 99.5% | ||||||
DOMA
|
CME
|
2009
|
Cable/satellite
|
0.7% | 54.1% | ||||||
Others
|
29.1% | ||||||||||
100.0% | |||||||||||
Source:
CME.
|
2005
|
2006
|
2007
|
2008
|
2009
|
||||||||||||||||
POP
TV
|
||||||||||||||||||||
All
day
|
27.2% | 29.1% | 26.0% | 25.2% | 25.6% | |||||||||||||||
Prime
time
|
33.9% | 36.0% | 32.4% | 31.9% | 34.3% | |||||||||||||||
KANAL
A
|
||||||||||||||||||||
All
day
|
11.4% | 12.0% | 14.2% | 14.8% | 13.0% | |||||||||||||||
Prime
time
|
13.5% | 13.8% | 15.4% | 15.5% | 13.6% | |||||||||||||||
Source:
AGB Nielsen Media Research.
|
Main
Television Channels
|
Ownership
|
Year
of first transmission
|
Signal
distribution
|
All
day audience share (2009)
|
Technical
reach
|
||||||
POP
TV
|
CME
|
1995
|
Terrestrial
/ cable
|
25.6% | 95% | ||||||
SLO
1
|
Public
Television
|
1958
|
Terrestrial
/ satellite / cable
|
13.5% | 100% | ||||||
KANAL
A
|
CME
|
1991
|
Terrestrial
/ cable
|
13.0% | 94% | ||||||
SLO
2
|
Public
Television
|
1967
|
Terrestrial
/ satellite / cable
|
7.8% | 99% | ||||||
TV3
|
Modern
Times Group
|
1995
|
Terrestrial
/ cable
|
7.6% | 78% | ||||||
TV
PIKA
|
CME
|
2009
|
Terrestrial
/ cable
|
1.0% | 66% | ||||||
Others
|
31.5% | ||||||||||
100.0% | |||||||||||
Source:
AGB Nielsen Media Research.
|
2005
|
2006
|
2007
|
2008
|
2009
|
||||||||||||||||
STUDIO
1+1
|
||||||||||||||||||||
All
day
|
20.8% | 18.3% | 14.9% | 10.9% | 9.2% | |||||||||||||||
Prime
time
|
23.4% | 23.2% | 17.6% | 12.4% | 11.6% | |||||||||||||||
KINO
|
||||||||||||||||||||
All
day
|
0.0% | 0.3% | 0.9% | 0.8% | 0.7% | |||||||||||||||
Prime
time
|
0.0% | 0.2% | 0.6% | 0.6% | 0.6% |
Main
Television
Channels
|
Ownership
|
Year
of first
transmission
|
Signal
distribution
|
Audience
share
(2009)
|
Technical
reach
|
||||||
Inter
|
Local
owners
|
1996
|
Terrestrial
/ satellite / cable
|
13.4% | 99.1% | ||||||
Novy
Kanal
|
Local
owner (same as ICTV and STB)
|
1998
|
Terrestrial
/ satellite / cable
|
10.4% | 95.5% | ||||||
STB
|
Local
owner (same as Novy Kanal and ICTV)
|
1997
|
Terrestrial
/ satellite / cable
|
9.5% | 93.4% | ||||||
STUDIO
1+1
|
CME
|
1997
|
Terrestrial
/ satellite / cable
|
9.2% | 98.8% | ||||||
ICTV
|
Local
owner (same as Novy Kanal and STB)
|
1992
|
Terrestrial
/ satellite / cable
|
9.0% | 95.1% | ||||||
TRK
Ukraine
|
Local
owner
|
2004
|
Terrestrial
/ satellite / cable
|
7.3% | 97.0% | ||||||
UT-1
|
Public
Television
|
1965
|
Terrestrial
/ cable
|
0.9% | 97.6% | ||||||
KINO
|
CME
|
1993
|
Terrestrial
/ satellite / cable
|
0.7% | 65.7% | ||||||
Others
|
39.6% | ||||||||||
100.0% |
Item
1A.
|
Risk
Factors
|
ITEM
1
B.
|
UNRESOLVED
STAFF COMMENTS
|
ITEM
2.
|
PROPERTIES
|
Location
|
Property
|
Use
|
Hamilton,
Bermuda
|
Leased
office
|
Registered
Office, corporate
|
Amsterdam,
Netherlands
|
Leased
office
|
Corporate
Office, corporate
|
London,
United Kingdom
|
Leased
office
|
Administrative
Center, corporate
|
Sofia,
Bulgaria
|
Leased
buildings
|
Office
and studio space, PRO.BG and RING.BG
|
Zagreb,
Croatia
|
Owned
and leased buildings
|
Office
and studio space, NOVA TV (Croatia)
|
Prague,
Czech Republic
|
Owned
and leased buildings
|
Administrative
Centre, corporate
Office
and studio space, TV NOVA (Czech Republic)
|
Bucharest
and other key cities within Romania
|
Owned
and leased buildings
|
Office
and studio space, PRO TV and Media Pro Entertainment
|
Bratislava,
Slovak Republic
|
Owned
buildings
|
Office
and studio space, TV MARKIZA
|
Ljubljana,
Slovenia
|
Owned
and leased buildings
|
Office
and studio space, POP TV, KANAL A and TV PIKA
|
Kiev
and other key cities within Ukraine
|
Leased
buildings
|
Office
and studio space, STUDIO 1+1 and
KINO
|
ITEM
3.
|
LEGAL
PROCEEDINGS
|
ITEM
4.
|
SUBMISSION
OF MATTERS TO A VOTE OF SECURITY
HOLDERS
|
ITEM
5.
|
MARKET
FOR REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND
ISSUER PURCHASES OF EQUITY
SECURITIES
|
Price
Period
|
High
(US$ / Share)
|
Low
(US$ / Share)
|
||||||
2009
|
||||||||
Fourth
Quarter
|
33.73 | 23.61 | ||||||
Third
Quarter
|
38.08 | 17.44 | ||||||
Second
Quarter
|
22.00 | 11.97 | ||||||
First
Quarter
|
22.73 | 4.86 | ||||||
2008
|
||||||||
Fourth
Quarter
|
66.47 | 9.07 | ||||||
Third
Quarter
|
89.42 | 61.99 | ||||||
Second
Quarter
|
106.99 | 86.34 | ||||||
First
Quarter
|
114.17 | 78.50 | ||||||
Central
European Media Enterprises Ltd.
|
$ | 40.78 | ||
NASDAQ
Composite Index
|
$ | 96.53 | ||
Dow
Jones World Broadcasting Index
(1)
|
$ | 102.89 |
ITEM
6.
|
SELECTED
FINANCIAL DATA
|
For
the Years Ended December 31,
|
||||||||||||||||||||
2009
|
2008
|
2007
|
2006
|
2005
|
||||||||||||||||
(US$
000’s, except per share data)
|
||||||||||||||||||||
CONSOLIDATED
STATEMENT OF OPERATIONS DATA:
|
||||||||||||||||||||
Net
revenues
|
$ | 713,978 | $ | 1,019,934 | $ | 838,856 | $ | 602,646 | $ | 400,978 | ||||||||||
Operating
(loss) / income
|
(83,180 | ) | (127,797 | ) | 210,456 | 142,971 | 52,196 | |||||||||||||
Net
(loss) / income from continuing operations
|
(107,545 | ) | (263,694 | ) | 110,205 | 35,794 | 42,835 | |||||||||||||
Net
(loss) / income on discontinued operations
|
(262 | ) | (3,785 | ) | (4,480 | ) | (7,217 | ) | (513 | ) | ||||||||||
Net
(loss) / income attributable to CME Ltd.
|
$ | (97,157 | ) | $ | (269,546 | ) | $ | 88,618 | $ | 21,626 | $ | 42,322 | ||||||||
PER
SHARE DATA:
|
||||||||||||||||||||
Net
(loss) / income per common share from:
|
||||||||||||||||||||
Continuing
operations – basic
|
$ | (1.78 | ) | $ | (6.28 | ) | $ | 2.25 | $ | 0.72 | $ | 1.24 | ||||||||
Continuing
operations – diluted
|
(1.78 | ) | (6.28 | ) | 2.23 | 0.71 | 1.21 | |||||||||||||
Discontinued
operations – basic
|
(0.01 | ) | (0.09 | ) | (0.11 | ) | (0.18 | ) | (0.01 | ) | ||||||||||
Discontinued
operations – diluted
|
(0.01 | ) | (0.09 | ) | (0.11 | ) | (0.18 | ) | (0.01 | ) | ||||||||||
Net
(loss) / income
attributable to CME Ltd.
common shareholders - basic
|
(1.79 | ) | (6.37 | ) | 2.14 | 0.54 | 1.22 | |||||||||||||
Net
(loss) / income
attributable to CME Ltd. common
shareholders
-
diluted
|
$ | (1.79 | ) | $ | (6.37 | ) | $ | 2.12 | $ | 0.53 | $ | 1.19 | ||||||||
Weighted
average common shares used in computing per share amounts
(000’s)
|
||||||||||||||||||||
Basic
|
54,344 | 42,328 | 41,384 | 40,027 | 34,664 | |||||||||||||||
Diluted
|
54,344 | 42,328 | 41,833 | 40,600 | 35,430 |
CONSOLIDATED
BALANCE SHEET DATA:
|
||||||||||||||||||||
Cash
|
$ | 458,529 | $ | 107,433 | $ | 142,812 | $ | 145,902 | $ | 71,658 | ||||||||||
Other
current assets
|
371,276 | 387,323 | 392,280 | 271,763 | 215,268 | |||||||||||||||
Non-current
assets
|
2,042,982 | 1,911,860 | 1,803,343 | 1,401,335 | 1,101,924 | |||||||||||||||
Total
assets
|
$ | 2,872,787 | $ | 2,406,616 | $ | 2,338,435 | $ | 1,819,000 | $ | 1,388,850 | ||||||||||
Current
liabilities
|
349,723 | 228,673 | 234,470 | 184,461 | 206,961 | |||||||||||||||
Non-current
liabilities
|
1,351,224 | 1,079,498 | 681,003 | 572,584 | 488,099 | |||||||||||||||
CME
Ltd. Shareholders’ equity
|
1,177,589 | 1,095,258 | 1,399,807 | 1,035,766 | 680,553 | |||||||||||||||
Noncontrolling
interests
|
(5,749 | ) | 3,187 | 23,155 | 26,189 | 13,237 | ||||||||||||||
Total
liabilities and equity
|
$ | 2,872,787 | $ | 2,406,616 | $ | 2,338,435 | $ | 1,819,000 | $ | 1,388,850 |
ITEM
7
.
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS.
|
I.
|
Executive
Summary
|
ll.
|
General
Market Information
|
Ill.
|
Analysis
of the Results of Consolidated
Operations
|
IV.
|
Analysis
of Segment Results
|
V.
|
Condensed
Consolidated Balance Sheet
|
VI.
|
Liquidity
and Capital Resources
|
VIl.
|
Critical
Accounting Policies and Estimates
|
Vll.
|
Related
Party Matters
|
For
the Years Ended December 31, (US$ 000's)
|
||||||||||||
2009
|
2008
|
Movement
|
||||||||||
Net
revenues
|
$ | 713,978 | $ | 1,019,934 | $ | (305,956 | ) | |||||
Operating
loss
|
(83,180 | ) | (127,797 | ) | 44,617 | |||||||
Net
loss
|
$ | (107,807 | ) | $ | (267,479 | ) | $ | 159,672 | ||||
Net
cash (used in) / generated from continuing operating
activities
|
$ | (31,806 | ) | $ | 135,555 | $ | (167,361 | ) |
|
·
|
On
May 18, 2009, we issued 14.5 million shares of Class A common stock and
4.5 million shares of Class B common stock to Time Warner Media Holdings
B.V., an affiliate of Time Warner for an aggregate offering price, net of
fees, of US$ 234.4 million.
|
|
·
|
During
the second quarter, we designated our Bulgaria and Ukraine subsidiaries,
as well as CME Development Financing B.V., the entity that funds those
operations (the “Development Finance Holding Company”), as Unrestricted
Subsidiaries (as defined in Item 8, Note 23, “Restricted and Unrestricted
Subsidiaries”).
|
|
·
|
During
the third quarter, we issued EUR 440.0 million (approximately US$ 633.9
million) 11.625% senior notes due 2016 in two tranches (the “2009 Fixed
Rate Notes”) and used the majority of the proceeds to repay existing
debt.
|
|
·
|
On
December 21, 2009, our wholly owned subsidiary CET 21 entered into a
Facility Agreement for up to CZK 3.0 billion (approximately US$
163.3 million) with Erste Group Bank A.G. as arranger, of which CZK 2.8
billion (approximately US$ 152.4 million) has been committed and drawn as
at February 24, 2010.
|
|
·
|
On
December 9, 2009, we acquired Media Pro Entertainment from Adrian Sarbu,
our President and Chief Executive Officer and member of our Board of
Directors, for consideration of US$ 10.0 million in cash, 2.2 million
shares of Class A common stock and warrants to purchase an additional
850,000 shares of Class A common
stock.
|
|
·
|
On
January 20, 2010, we entered into an agreement with Igor Kolomoisky to
sell our interests in our Ukraine operations for aggregate cash
consideration of US$ 300.0 million plus the reimbursement of cash
operating costs between the signing and closing, estimated to be US$ 19.0
million.
|
|
·
|
On
February 18, 2010, we entered into an agreement with News Corporation to
purchase the bTV group for cash consideration of US$ 400.0
million.
|
|
·
|
On July 27, 2009, Adrian Sarbu
was appointed as our President and Chief Executive Officer. Mr Sarbu was
previously our President and Chief Operating Officer from December 2008
and Chief Operating Officer from October
2007.
|
|
·
|
On July 1, 2009, Wallace
Macmillan resigned as our Chief Financial Officer and has been replaced on
an interim basis by Charles Frank, Jr., formerly a member of our Board of
Directors.
|
|
·
|
creating a new operating model
with three operating divisions - broadcast operations, new media and
content (which will be known as Media Pro Entertainment) – to achieve more
efficient use of our resources in order to grow
faster;
|
|
·
|
capitalizing on our core
strengths and diversifying our revenue from advertising to five main
sources: advertising, subscription, content distribution, internet and
management services;
|
|
·
|
developing and producing
content on a larger scale and distributing in our region and beyond in all
windows and platforms;
|
|
·
|
assessing opportunities
arising from current economic conditions to acquire or operate additional
channels and internet operations in our regions in order to expand our
offerings, target niche audiences and increase our advertising inventory
when financially prudent.
|
Country
|
2009
Rating
|
Details
of 2009 Rating
|
2008
Rating
|
2007
Rating
|
2006
Rating
|
Bulgaria
|
B
|
Political
and economic uncertainties and an occasionally difficult business
environment can affect corporate payment behaviour. Corporate default
probability is appreciable.
|
A4
|
-
|
-
|
Croatia
|
A4
|
A
somewhat shaky political and economic outlook and a relatively volatile
business environment can affect corporate payment
behavior. Corporate default probability is still acceptable on
average.
|
A4
|
A4
|
A4
|
Czech
Republic
|
A2
|
The
political and economic situation is good. A basically stable
and efficient business environment nonetheless leaves room for
improvement. Corporate default is low on
average.
|
A2
|
A2
|
A2
|
Romania
|
B
|
Political
and economic uncertainties and an occasionally difficult business
environment can affect corporate payment behaviour. Corporate default
probability is appreciable.
|
A4
|
A4
|
A4
|
Slovak
Republic
|
A3
|
Changes
in generally good but somewhat volatile political and economic environment
can affect corporate payment behavior. A basically secure
business environment can nonetheless give rise to occasional difficulties
for companies. Corporate default probability is quite
acceptable on average.
|
A3
|
A3
|
A3
|
Slovenia
|
A2
|
The
political and economic situation is good. A basically stable
and efficient business environment nonetheless leaves room for
improvement. Corporate default is low on
average.
|
A1
|
A1
|
A1
|
Ukraine
|
D
|
A
high-risk political and economic situation and an often very difficult
business environment can have a very significant impact on corporate
payment behaviour. Corporate default probability is very
high.
|
C
|
C
|
C
|
Country
|
Population
(in
millions)
(1)
|
Per
Capita GDP 2009
(1)
|
Total
Advertising Spending per Capita 2009 (US$)
(2)
|
Total
Advertising Spending as a % of GDP 2009
(2)
|
TV
Advertising Spending per Capita (US$)
2009
(2)
|
TV
Advertising Spending as a % of Total Advertising Spending
2009
(2)
|
||||||||||||||||||
Bulgaria
|
7.5 | $ | 6,228 | $ | 35.6 | 0.57 | % | $ | 18.2 | 55 | % | |||||||||||||
Croatia
|
4.4 | $ | 14,488 | $ | 54.4 | 0.38 | % | $ | 29.3 | 54 | % | |||||||||||||
Czech
Republic
|
10.5 | $ | 18,294 | $ | 80.6 | 0.44 | % | $ | 34.6 | 43 | % | |||||||||||||
Romania
|
20.6 | $ | 8,155 | $ | 20.8 | 0.26 | % | $ | 13.2 | 63 | % | |||||||||||||
Slovak
Republic
|
5.4 | $ | 16,355 | $ | 61.3 | 0.37 | % | $ | 30.0 | 49 | % | |||||||||||||
Slovenia
|
2.0 | $ | 25,271 | $ | 63.1 | 0.25 | % | $ | 39.5 | 63 | % | |||||||||||||
Ukraine
|
46.1 | $ | 2,416 | $ | 10.0 | 0.40 | % | $ | 5.0 | 47 | % |
Country
|
Population
(in
millions)
(1)
|
Per
Capita GDP 2009
(1)
|
Total
Advertising Spending per Capita 2009 (US$)
(2)
|
Total
Advertising Spending as a % of GDP 2009
(2)
|
TV
Advertising Spending per Capita (US$)
2009
(2)
|
TV
Advertising Spending as a % of Total Advertising Spending
2009
(2)
|
||||||||||||||||||
Greece
|
11.2 | $ | 29,753 | $ | 301.8 | 1.01 | % | $ | 87.1 | 29 | % | |||||||||||||
Hungary
|
10.0 | $ | 13,666 | $ | 74.8 | 0.55 | % | $ | 29.8 | 40 | % | |||||||||||||
Italy
|
59.9 | $ | 35,873 | $ | 206.8 | 0.58 | % | $ | 109.2 | 53 | % | |||||||||||||
Poland
|
38.1 | $ | 12,240 | $ | 69.3 | 0.57 | % | $ | 34.1 | 49 | % | |||||||||||||
Russia
|
140.9 | $ | 9,149 | $ | 52.8 | 0.58 | % | $ | 29.0 | 55 | % | |||||||||||||
Turkey
|
74.8 | $ | 8,331 | $ | 24.9 | 0.30 | % | $ | 13.0 | 52 | % | |||||||||||||
UK
|
61.8 | $ | 36,079 | $ | 300.9 | 0.83 | % | $ | 77.8 | 26 | % | |||||||||||||
USA
|
307.8 | $ | 46,300 | $ | 470.9 | 1.02 | % | $ | 209.6 | 45 | % |
Country
|
2005
|
2006
|
2007
|
2008
|
2009
|
|||||||||||||||
Bulgaria
(1)
|
– | - | - | $ | 175 - $ 185 | $ | 135 – 145 | |||||||||||||
Croatia
|
$ | $ 115 – $ 125 | $ | 120 – $ 130 | $ | 140 – $ 150 | $ | 155 - $ 165 | $ | 125 – 135 | ||||||||||
Czech
Republic (1)
|
$ | 285 – $ 295 | $ | 310 – $ 320 | $ | 390 – $ 400 | $ | 490 - $ 500 | $ | 370 – 380 | ||||||||||
Romania
|
$ | 165 – $ 175 | $ | 235 – $ 245 | $ | 375 – $ 385 | $ | 465 - $ 475 | $ | 270 – 280 | ||||||||||
Slovak
Republic
|
$ | 90 – $ 100 | $ | 105 – $ 115 | $ | 165 – $ 170 | $ | 210 - $ 215 | $ | 160 – 170 | ||||||||||
Slovenia
|
$ | 60 - $ 70 | $ | 70 - $ 80 | $ | 85 – $ 90 | $ | 100 - $ 105 | $ | 78 – 82 | ||||||||||
Ukraine
(2)
|
$ | 220 - $ 230 | $ | 310 - $ 320 | $ | 470 - $ 480 | $ | 450 - $ 460 | $ | 205 - 215 |
Country
|
2005
|
2006
|
2007
|
2008
|
2009
|
|||||||||||||||
Bulgaria
(1)
|
- | - | - | 6 – 8 | % | (24-26 | )% | |||||||||||||
Croatia
|
(1 – 3 | )% | 2 - 5 | % | 4 – 7 | % | 0 | % | (14-16 | )% | ||||||||||
Czech
Republic (1)
|
3 – 5 | % | 0 - 1 | % | 8 – 12 | % | 7 – 9 | % | (22-24 | )% | ||||||||||
Romania
|
25 - 35 | % | 30 – 40 | % | 50 - 60 | % | 27 – 29 | % | (29-31 | )% | ||||||||||
Slovak
Republic
|
8 - 10 | % | 5 - 7 | % | 25 - 30 | % | 6 – 8 | % | (22-24 | )% | ||||||||||
Slovenia
|
9 - 11 | % | 9 - 11 | % | 8 - 10 | % | 7 – 9 | % | (18-20 | )% | ||||||||||
Ukraine
(2)
|
45 - 55 | % | 25 - 35 | % | 25 - 35 | % | (3 - 5 | )% | (28-30 | )% |
NET REVENUES | ||||||||||||||||||||||||||||||||
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
Croatia
|
$ | 49,139 | $ | 54,651 | (10.1 | )% | (4.4 | )% | $ | 54,651 | $ | 37,193 | 46.9 | % | 36.1 | % | ||||||||||||||||
Czech
Republic
|
275,883 | 376,546 | (26.7 | )% | (18.8 | )% | 376,546 | 279,237 | 34.8 | % | 15.4 | % | ||||||||||||||||||||
Romania
(Broadcast & Internet)
|
176,501 | 274,627 | (35.7 | )% | (22.9 | )% | 274,627 | 215,402 | 27.5 | % | 27.5 | % | ||||||||||||||||||||
Slovak
Republic
|
107,356 | 132,692 | (19.1 | )% | (16.7 | )% | 132,692 | 110,539 | 20.0 | % | 5.3 | % | ||||||||||||||||||||
Slovenia
|
66,710 | 80,697 | (17.3 | )% | (13.3 | )% | 80,697 | 69,647 | 15.9 | % | 9.7 | % | ||||||||||||||||||||
Total
Core Operations
|
$ | 675,589 | $ | 919,213 | (26.5 | )% | (18.2 | )% | $ | 919,213 | $ | 712,018 | 29.1 | % | 17.6 | % | ||||||||||||||||
Bulgaria
(3)
|
3,520 | 1,263 | 178.7 | % | 160.0 | % | 1,263 | - | - | % | - | % | ||||||||||||||||||||
Ukraine
|
32,033 | 99,458 | (67.8 | )% | (67.8 | )% | 99,458 | 126,838 | (21.6 | )% | (21.6 | )% | ||||||||||||||||||||
Total
Developing Operations
|
$ | 35,553 | $ | 100,721 | (64.7 | )% | (64.7 | )% | $ | 100,721 | $ | 126,838 | (20.6 | )% | (20.6 | )% | ||||||||||||||||
Romania
(Media Pro Entertainment)
(4)
|
5,396 | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Elimination
|
(2,560 | ) | - | - | % | - | % | - | - | - | % | - | % | |||||||||||||||||||
Total
Net Revenues
|
$ | 713,978 | $ | 1,019,934 | (30.0 | )% | (23.0 | )% | $ | 1,019,934 | $ | 838,856 | 21.6 | % | 12.3 | % |
COST
OF REVENUES
|
||||||||||||||||||||||||||||||||
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
Operating
Costs
|
$ | 134,095 | $ | 145,210 | (7.7 | )% | 0.4 | % | $ | 145,210 | $ | 116,859 | 24.3 | % | 13.3 | % | ||||||||||||||||
Cost
of programming
|
389,900 | 438,203 | (11.0 | )% | (3.5 | )% | 438,203 | 327,230 | 33.9 | % | 25.7 | % | ||||||||||||||||||||
Depreciation
of station property, plant and equipment
|
53,651 | 51,668 | 3.8 | % | 14.9 | % | 51,668 | 32,653 | 58.2 | % | 41.7 | % | ||||||||||||||||||||
Amortization
of broadcast licenses and other intangibles
|
21,597 | 35,381 | (39.0 | )% | (33.3 | )% | 35,381 | 24,970 | 41.7 | % | 22.9 | % | ||||||||||||||||||||
Total
Cost of Revenues
|
$ | 599,243 | $ | 670,462 | (10.6 | )% | (2.8 | )% | $ | 670,462 | $ | 501,712 | 33.6 | % | 23.7 | % |
|
(1)
|
Actual
(“%Act”) reflects the percentage change between two
periods.
|
|
(2)
|
Like
for Like (“%Lfl”) or constant currency reflects the impact of applying the
current period average exchange rates to the prior period revenues and
costs.
|
|
(3)
|
Number not
meaningful.
|
OPERATING
COSTS
|
||||||||||||||||||||||||||||||||
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
Croatia
|
$ | 13,140 | $ | 12,723 | 3.3 | % | 10.5 | % | $ | 12,723 | $ | 9,999 | 27.2 | % | 17.7 | % | ||||||||||||||||
Czech
Republic
|
40,439 | 41,037 | (1.5 | )% | 9.4 | % | 41,037 | 30,325 | 35.3 | % | 11.8 | % | ||||||||||||||||||||
Romania
(Broadcast & Internet)
|
24,582 | 32,251 | (23.8 | )% | (8.5 | )% | 32,251 | 23,487 | 37.3 | % | 37.3 | % | ||||||||||||||||||||
Slovak
Republic
|
19,496 | 19,379 | 0.6 | % | 4.9 | % | 19,379 | 21,017 | (7.8 | )% | (20.3 | )% | ||||||||||||||||||||
Slovenia
|
12,085 | 14,329 | (15.7 | )% | (11.4 | )% | 14,329 | 12,185 | 17.6 | % | 10.2 | % | ||||||||||||||||||||
Total
Core Operations
|
$ | 109,742 | $ | 119,719 | (8.3 | )% | 1.7 | % | $ | 119,719 | $ | 97,013 | 23.4 | % | 10.5 | % | ||||||||||||||||
Bulgaria
(3)
|
6,244 | 2,289 | 172.8 | % | 159.0 | % | 2,289 | - | - | % | - | % | ||||||||||||||||||||
Ukraine
|
17,520 | 23,202 | (24.5 | )% | (24.5 | )% | 23,202 | 19,846 | 16.9 | % | 16.9 | % | ||||||||||||||||||||
Total
Developing Operations
|
$ | 23,764 | $ | 25,491 | (6.8 | )% | (7.2 | )% | $ | 25,491 | $ | 19,846 | 28.4 | % | 28.4 | % | ||||||||||||||||
Romania
(Media Pro Entertainment)
(4)
|
589 | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Elimination
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Total
Operating Costs
|
$ | 134,095 | $ | 145,210 | (7.7 | )% | 0.4 | % | $ | 145,210 | $ | 116,859 | 24.3 | % | 13.3 | % |
COST
OF PROGRAMMING
|
||||||||||||||||||||||||||||||||
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
Croatia
|
$ | 29,809 | $ | 39,585 | (24.7 | )% | (19.6 | )% | $ | 39,585 | $ | 32,232 | 22.8 | % | 13.8 | % | ||||||||||||||||
Czech
Republic
|
85,667 | 101,356 | (15.5 | )% | (6.3 | )% | 101,356 | 70,005 | 44.8 | % | 23.9 | % | ||||||||||||||||||||
Romania
(Broadcast & Internet)
|
96,839 | 114,716 | (15.6 | )% | 0.7 | % | 114,716 | 85,288 | 34.5 | % | 34.5 | % | ||||||||||||||||||||
Slovak
Republic
|
61,325 | 52,162 | 17.6 | % | 22.6 | % | 52,162 | 37,258 | 40.0 | % | 21.9 | % | ||||||||||||||||||||
Slovenia
|
30,117 | 32,823 | (8.2 | )% | (3.1 | )% | 32,823 | 27,988 | 17.3 | % | 11.0 | % | ||||||||||||||||||||
Total
Core Operations
|
$ | 303,757 | $ | 340,642 | (10.8 | )% | (0.7 | )% | $ | 340,642 | $ | 252,771 | 34.8 | % | 24.2 | % | ||||||||||||||||
Bulgaria
(4)
|
34,979 | 6,506 |
Nm
(3)
|
Nm
(3)
|
6,506 | - | - | % | - | % | ||||||||||||||||||||||
Ukraine
|
48,699 | 91,055 | (46.5 | )% | (46.5 | )% | 91,055 | 74,459 | 22.3 | % | 22.3 | % | ||||||||||||||||||||
Total
Developing Operations
|
$ | 83,678 | $ | 97,561 | (14.2 | )% | (14.7 | )% | $ | 97,561 | $ | 74,459 | 31.0 | % | 31.0 | % | ||||||||||||||||
Romania
(Media Pro Entertainment)
(5)
|
4,692 | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Elimination
|
(2,227 | ) | - | - | % | - | % | - | - | - | % | - | % | |||||||||||||||||||
Total
Cost of Programming
|
$ | 389,900 | $ | 438,203 | (11.0 | )% | (3.5 | )% | $ | 438,203 | $ | 327,230 | 33.9 | % | 25.7 | % | ||||||||||||||||
Represented
by:
|
||||||||||||||||||||||||||||||||
Production
Expenses
|
180,091 | 194,759 | (7.5 | )% | 1.8 | % | 194,759 | 138,696 | 40.4 | % | 29.3 | % | ||||||||||||||||||||
Program
Amortization
|
209,809 | 243,444 | (13.8 | )% | (7.6 | )% | 243,444 | 188,534 | 29.1 | % | 22.9 | % | ||||||||||||||||||||
Cost
of Programming
|
$ | 389,900 | $ | 438,203 | (11.0 | )% | (3.5 | )% | $ | 438,203 | $ | 327,230 | 33.9 | % | 25.7 | % |
PROGRAM
AMORTIZATION AND CASH PAID FOR ACQUIRED PROGRAMMING
|
||||||||||||||||||||||||||||||||
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
Program
amortization
|
||||||||||||||||||||||||||||||||
Croatia
|
$ | 13,101 | $ | 21,229 | (38.3 | )% | (34.3 | )% | $ | 21,229 | $ | 20,784 | 2.1 | % | (5.5 | )% | ||||||||||||||||
Czech
Republic
|
42,725 | 57,580 | (25.8 | )% | (18.4 | )% | 57,580 | 34,992 | 64.6 | % | 44.2 | % | ||||||||||||||||||||
Romania
(Broadcast & Internet)
|
54,498 | 55,253 | (1.4 | )% | 16.8 | % | 55,253 | 44,673 | 23.7 | % | 23.7 | % | ||||||||||||||||||||
Slovak
Republic
|
31,427 | 20,855 | 50.7 | % | 58.9 | % | 20,855 | 16,326 | 27.7 | % | 12.1 | % | ||||||||||||||||||||
Slovenia
|
13,944 | 13,076 | 6.6 | % | 10.4 | % | 13,076 | 10,289 | 27.1 | % | 20.3 | % | ||||||||||||||||||||
Total
Core Operations
|
$ | 155,695 | $ | 167,993 | (7.3 | )% | 2.9 | % | $ | 167,993 | $ | 127,064 | 32.2 | % | 23.0 | % | ||||||||||||||||
Bulgaria
(4)
|
19,862 | 2,865 |
Nm
(3)
|
Nm
(3)
|
2,865 | $ | - | - | % | - | % | |||||||||||||||||||||
Ukraine
|
34,535 | 72,586 | (52.4 | )% | (52.4 | )% | 72,586 | 61,470 | 18.1 | % | 18.1 | % | ||||||||||||||||||||
Total
Developing Operations
|
$ | 54,397 | $ | 75,451 | (27.9 | )% | (28.1 | )% | $ | 75,451 | $ | 61,470 | 22.7 | % | 22.7 | % | ||||||||||||||||
Romania
(Media Pro Entertainment)
(5)
|
165 | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Elimination
|
(448 | ) | - | - | % | - | % | - | - | - | % | - | % | |||||||||||||||||||
Total
Program Amortization
|
$ | 209,809 | $ | 243,444 | (13.8 | )% | (7.6 | )% | $ | 243,444 | $ | 188,534 | 29.1 | % | 22.9 | % | ||||||||||||||||
Cash
paid for acquired programming:
|
||||||||||||||||||||||||||||||||
Croatia
|
$ | 11,950 | $ | 24,922 | (52.1 | )% | (45.9 | )% | $ | 24,922 | $ | 22,894 | 8.9 | % | 42.6 | % | ||||||||||||||||
Czech
Republic
|
40,214 | 35,638 | 12.8 | % | 28.5 | % | 35,638 | 27,343 | 30.3 | % | 43.8 | % | ||||||||||||||||||||
Romania
(Broadcast & Internet)
|
78,228 | 73,223 | 6.8 | % | 30.1 | % | 73,223 | 61,271 | 19.5 | % | 19.5 | % | ||||||||||||||||||||
Slovak
Republic
|
25,132 | 23,905 | 5.1 | % | 8.6 | % | 23,905 | 18,273 | 30.8 | % | 13.9 | % | ||||||||||||||||||||
Slovenia
|
11,846 | 11,300 | 4.8 | % | 10.5 | % | 11,300 | 9,751 | 15.9 | % | 16.7 | % | ||||||||||||||||||||
Total
Core Operations
|
$ | 167,370 | $ | 168,988 | (1.0 | )% | 13.6 | % | $ | 168,988 | $ | 139,532 | 21.1 | % | 25.9 | % | ||||||||||||||||
Bulgaria
(4)
|
17,438 | 10,117 | 72.4 | % | 57.5 | % | 10,117 | - | - | % | - | % | ||||||||||||||||||||
Ukraine
|
40,506 | 48,658 | (16.8 | )% | (16.8 | )% | 48,658 | 70,487 | (31.0 | )% | (31.0 | )% | ||||||||||||||||||||
Total
Developing Operations
|
$ | 57,944 | $ | 58,775 | (1.4 | )% | (3.0 | )% | $ | 58,775 | $ | 70,487 | (16.6 | )% | (16.6 | )% | ||||||||||||||||
Romania
(Media Pro Entertainment)
(5)
|
310 | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Elimination
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Total
Cash Paid for Acquired Programming
|
$ | 225,624 | $ | 227,763 | (0.9 | )% | 8.9 | % | $ | 227,763 | $ | 210,019 | 8.4 | % | 11.3 | % |
Selling,
General and Administrative Expenses
|
||||||||||||||||||||||||||||||||
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
Croatia
|
$ | 5,967 | $ | 7,758 | (23.1 | )% | (18.0 | )% | $ | 7,758 | $ | 8,844 | (12.3 | )% | (19.2 | )% | ||||||||||||||||
Czech
Republic
|
21,314 | 25,498 | (16.4 | )% | (7.4 | )% | 25,498 | 22,411 | 13.8 | % | (3.9 | )% | ||||||||||||||||||||
Romania
(Broadcast & Internet)
|
16,570 | 15,877 | 4.4 | % | 24.4 | % | 15,877 | 13,552 | 17.2 | % | 17.2 | % | ||||||||||||||||||||
Slovak
Republic
|
12,655 | 10,923 | 15.9 | % | 20.5 | % | 10,923 | 10,732 | 1.8 | % | (10.6 | )% | ||||||||||||||||||||
Slovenia
|
6,686 | 8,132 | (17.8 | )% | (13.7 | )% | 8,132 | 6,707 | 21.2 | % | 12.0 | % | ||||||||||||||||||||
Corporate
|
39,143 | 49,676 | (21.2 | )% | (19.1 | )% | 49,676 | 55,373 | (10.3 | )% | (10.3 | )% | ||||||||||||||||||||
Total
Core Operations
|
$ | 102,335 | $ | 117,864 | (13.2 | )% | (7.2 | )% | $ | 117,864 | $ | 117,619 | 0.2 | % | (5.4 | )% | ||||||||||||||||
Bulgaria
|
7,071 | 2,653 | 166.5 | % | 147.3 | % | 2,653 | - | - | % | - | % | ||||||||||||||||||||
Ukraine
|
6,285 | 20,000 | (68.6 | )% | (68.6 | )% | 20,000 | 9,069 | 120.5 | % | 120.5 | % | ||||||||||||||||||||
Total
Developing Operations
|
$ | 13,356 | $ | 22,653 | (41.0 | )% | (41.6 | )% | $ | 22,653 | $ | 9,069 | 149.8 | % | 149.8 | % | ||||||||||||||||
Romania
(Media Pro Entertainment)
(3)
|
381 | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Elimination
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Total
Selling, General and Administrative Expenses
|
$ | 116,072 | $ | 140,517 | (17.4 | )% | (12.8 | )% | $ | 140,517 | $ | 126,688 | 10.9 | % | 5.2 | % |
|
·
|
an
increase in travel costs primarily related to the use of a chartered
aircraft, and salary and travel costs following the establishment of a
centralized planning and development function to manage our initiatives to
improve operational efficiencies;
|
|
·
|
a
further increase in staff-related costs as a result of redundancy payments
following headcount reductions in the fourth quarter;
and
|
|
·
|
an
increase in business development expenses incurred in evaluating potential
investments.
|
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Bulgaria
|
$ | 81,843 | $ | 64,891 | $ | - | ||||||
Ukraine
|
- | 271,861 | - | |||||||||
Total
|
$ | 81,843 | $ | 336,752 | $ | - |
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
Operating
(loss) / income
|
$ | (83,180 | ) | $ | (127,797 | ) | (34.9 | )% | (49.9 | )% | $ | (127,797 | ) | $ | 210,456 | (160.7 | )% | (179.8 | )% |
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
2008
|
2007
|
%
Act
(1)
|
|||||||||||||||||||
Interest
income
|
$ | 2,916 | $ | 10,006 | (70.9 | )% | $ | 10,006 | $ | 5,728 | 74.7 | % | ||||||||||||
Interest
expense
|
(115,771 | ) | (82,481 | ) | (40.4 | )% | (82,481 | ) | (54,936 | ) | (50.1 | )% | ||||||||||||
Foreign
currency exchange loss, net
|
82,461 | (37,877 | ) |
Nm
(
2)
|
(37,877 | ) | (34,409 | ) | 10.1 | % | ||||||||||||||
Change
in fair value of derivatives
|
1,315 | 6,360 | (79.3 | )% | 6,360 | (3,703 | ) | 271.8 | % | |||||||||||||||
Other
income
|
1,521 | 2,620 | (41.9 | )% | 2,620 | 7,891 | (66.8 | )% | ||||||||||||||||
Benefit
/ (Provision) for income taxes
|
3,193 | (34,525 | ) | 109.2 | % | (34,525 | ) | (20,822 | ) | (65.8 | )% | |||||||||||||
Discontinued
operations, net of tax
|
(262 | ) | (3,785 | ) | 93.1 | % | (3,785 | ) | (4,480 | ) | 15.5 | % | ||||||||||||
Noncontrolling
interest in loss / (income) of consolidated
subsidiaries
|
10,650 | (2,067 | ) |
Nm
(
2)
|
(2,067 | ) | (17,107 | ) | 87.9 | % | ||||||||||||||
Currency
translation adjustment, net
|
(106,604 | ) | (88,609 | ) | (20.3 | )% | (88,609 | ) | 158,825 | (155.8 | )% | |||||||||||||
Obligation
to purchase shares
|
$ | - | $ | 488 |
Nm
(
2)
|
$ | 488 | $ | (488 | ) |
Nm
(2)
|
For
the years ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Bulgarian
Lev (1)
|
(3 | )% | - | % | - | % | ||||||
Croatian
Kuna
|
(2 | )% | 5 | % | (11 | )% | ||||||
Czech
Koruna
|
(5 | )% | 7 | % | (13 | )% | ||||||
Euro
|
(3 | )% | 6 | % | (11 | )% | ||||||
New
Romanian Lei
|
4 | % | 15 | % | (4 | )% | ||||||
Ukraine
Hryvna (2)
|
5 | % | - | % | - | % |
|
·
|
foreign
currency exchange gains and losses;
|
|
·
|
change
in the fair value of derivatives;
and
|
|
·
|
certain
unusual or infrequent items (e.g., impairments of assets or
investments)
|
SEGMENT
FINANCIAL INFORMATION
|
||||||||||||||||||||||||||||||||
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(7)
|
%
Lfl
(8)
|
2008
|
2007
|
%
Act
(7)
|
%
Lfl
(8)
|
|||||||||||||||||||||||||
Net
Revenues
|
||||||||||||||||||||||||||||||||
Croatia
(NOVA TV)
|
$ | 49,139 | $ | 54,651 | (10.1 | )% | (4.4 | )% | $ | 54,651 | $ | 37,193 | 46.9 | % | 36.1 | % | ||||||||||||||||
Czech
Republic (TV NOVA, NOVA CINEMA, NOVA SPORT and MTV CZECH)
(1)
|
275,883 | 376,546 | (26.7 | )% | (18.8 | )% | 376,546 | 279,237 | 34.8 | % | 15.4 | % | ||||||||||||||||||||
Romania
(2)
|
176,501 | 274,627 | (35.7 | )% | (22.9 | )% | 274,627 | 215,402 | 27.5 | % | 27.5 | % | ||||||||||||||||||||
Slovak
Republic (TV MARKIZA and DOMA) (3)
|
107,356 | 132,692 | (19.1 | )% | (16.7 | )% | 132,692 | 110,539 | 20.0 | % | 5.3 | % | ||||||||||||||||||||
Slovenia
(POP TV, KANAL A and TV PIKA)
|
66,710 | 80,697 | (17.3 | )% | (13.3 | )% | 80,697 | 69,647 | 15.9 | % | 9.7 | % | ||||||||||||||||||||
Total
Core Operations
|
$ | 675,589 | $ | 919,213 | (26.5 | )% | (18.2 | )% | $ | 919,213 | $ | 712,018 | 29.1 | % | 17.6 | % | ||||||||||||||||
Bulgaria
(PRO.BG and RING.BG) (4)
|
3,520 | 1,263 | 178.7 | % | 160.0 | % | 1,263 | - | - | % | - | % | ||||||||||||||||||||
Ukraine
(STUDIO 1+1, KINO) (5)
|
32,033 | 99,458 | (67.8 | )% | (67.8 | )% | 99,458 | 126,838 | (21.6 | )% | (21.6 | )% | ||||||||||||||||||||
Total
Developing Operations
|
$ | 35,553 | $ | 100,721 | (64.7 | )% | (64.7 | )% | $ | 100,721 | 126,838 | (20.6 | )% | (20.6 | )% | |||||||||||||||||
Romania
(Media Pro Entertainment) (6)
|
5,396 | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Elimination
|
(2,560 | ) | - | - | % | - | % | - | - | - | % | - | % | |||||||||||||||||||
Total
Net Revenues
|
$ | 713,978 | $ | 1,019,934 | (30.0 | )% | (23.0 | )% | $ | 1,019,934 | $ | 838,856 | 21.6 | % | 12.3 | % | ||||||||||||||||
Represented
by:
|
||||||||||||||||||||||||||||||||
Broadcast
operations
|
$ | 701,024 | $ | 1,010,403 | (30.6 | )% | (23.6 | )% | $ | 1,010,403 | $ | 835,232 | 21.0 | % | 11.7 | % | ||||||||||||||||
Internet
operations
|
10,118 | 9,531 | 6.2 | % | 14.8 | % | 9,531 | 3,624 | 163.0 | % | 146.4 | % | ||||||||||||||||||||
Content
operations
|
5,396 | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Elimination
|
(2,560 | ) | - | - | % | - | % | - | - | - | % | - | % | |||||||||||||||||||
Total
Net Revenues
|
$ | 713,978 | $ | 1,019,934 | (30.0 | )% | (23.0 | )% | $ | 1,019,934 | $ | 838,856 | 21.6 | % | 12.3 | % |
SEGMENT
FINANCIAL INFORMATION
|
||||||||||||||||||||||||||||||||
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(8)
|
%
Lfl
(9)
|
2008
|
2007
|
%
Act
(8)
|
%
Lfl
(9)
|
|||||||||||||||||||||||||
EBITDA
|
||||||||||||||||||||||||||||||||
Croatia
(NOVA TV)
|
$ | 223 | $ | (5,415 | ) | 104.1 | % | 104.6 | % | $ | (5,415 | ) | $ | (13,882 | ) | 61.0 | % | 64.1 | % | |||||||||||||
Czech
Republic (TV NOVA, NOVA CINEMA NOVA SPORT and MTV CZECH)
(1)
|
128,463 | 208,655 | (38.4 | )% | (31.9 | )% | 208,655 | 156,496 | 33.3 | % | 15.0 | % | ||||||||||||||||||||
Romania
(2)
|
38,510 | 111,783 | (65.5 | )% | (58.4 | )% | 111,783 | 93,075 | 20.1 | % | 20.1 | % | ||||||||||||||||||||
Slovak
Republic (TV MARKIZA and DOMA) (3)
|
13,880 | 50,228 | (72.4 | )% | (72.1 | )% | 50,228 | 41,532 | 20.9 | % | 7.6 | % | ||||||||||||||||||||
Slovenia
(POP TV, KANAL A and TV PIKA)
|
17,822 | 25,413 | (29.9 | )% | (27.2 | )% | 25,413 | 22,767 | 11.6 | % | 7.1 | % | ||||||||||||||||||||
Corporate
|
(38,151 | ) | (48,787 | ) | 21.8 | % | 19.7 | % | (48,787 | ) | (54,531 | ) | 10.5 | % | 10.5 | % | ||||||||||||||||
Total
Core Operations
|
$ | 160,747 | $ | 341,877 | (53.0 | )% | (46.9 | )% | $ | 341,877 | $ | 245,457 | 39.3 | % | 24.2 | % | ||||||||||||||||
Bulgaria
(PRO.BG and RING.BG) (4)
|
(44,774 | ) | $ | (10,185 | ) |
Nm
(5)
|
Nm
(5)
|
$ | (10,185 | ) | $ | - | - | % | - | % | ||||||||||||||||
Ukraine
(STUDIO 1+1, KINO) (5)
|
(40,471 | ) | (34,799 | ) | (16.3 | )% | (16.3 | )% | (34,799 | ) | 23,464 | (248.3 | )% | (248.3 | )% | |||||||||||||||||
Total
Developing Operations
|
$ | (85,245 | ) | $ | (44,984 | ) | (89.5 | )% | (86.4 | )% | $ | (44,984 | ) | $ | 23,464 | (291.7 | )% | (291.7 | )% | |||||||||||||
Romania
(Media Pro Entertainment) (6)
|
(266 | ) | - | - | % | - | % | - | - | - | % | - | % | |||||||||||||||||||
Elimination
|
(333 | ) | - | - | % | - | % | - | - | - | % | - | % | |||||||||||||||||||
Consolidated
EBITDA
|
$ | 74,903 | $ | 296,893 | (74.8 | )% | (70.9 | )% | $ | 296,893 | $ | 268,921 | 10.4 | % | (0.6 | )% | ||||||||||||||||
Represented
by:
|
||||||||||||||||||||||||||||||||
Broadcast
operations
|
$ | 123,424 | $ | 354,388 | (65.2 | )% | (60.5 | )% | $ | 354,388 | $ | 327,330 | 8.3 | % | (0.9 | )% | ||||||||||||||||
Internet
operations
|
(9,771 | ) | (8,708 | ) | (12.2 | )% | (21.3 | )% | (8,708 | ) | (3,878 | ) | (124.5 | )% | (110.8 | )% | ||||||||||||||||
Content
operations
|
(266 | ) | - | - | % | - | % | - | - | - | % | - | % | |||||||||||||||||||
Corporate
|
(38,151 | ) | (48,787 | ) | 21.8 | % | 19.7 | % | (48,787 | ) | (54,531 | ) | 10.5 | % | 10.5 | % | ||||||||||||||||
Elimination
|
(333 | ) | - | - | % | - | % | - | - | - | % | - | % | |||||||||||||||||||
Consolidated
EBITDA
|
$ | 74,903 | $ | 296,893 | (74.8 | )% | (70.9 | )% | $ | 296,893 | $ | 268,921 | 10.4 | % | (0.6 | )% | ||||||||||||||||
EBITDA
Margin (7)
|
10 | % | 29 | % | (19 | )% | (18 | )% | 29 | % | 32 | % | (3 | )% | (4 | )% |
For
the year ended
December 31, 2009
|
For
the five months
from
acquisition to
December 31, 2008
|
|||||||
All
day audience share
|
3.3 | % | 2.0 | % | ||||
All
day ratings
|
0.4 | % | 0.2 | % | ||||
Prime
time audience share
|
3.3 | % | 1.7 | % | ||||
Prime
time ratings
|
0.9 | % | 0.5 | % |
|
||||||||||||||||
BULGARIA FINANCIAL INFORMATION | ||||||||||||||||
(US$
000's)
|
||||||||||||||||
Movement
|
||||||||||||||||
For
the year ended
December 31, 2009
|
For
the period of
acquisition
from
August
1, 2008 to
December 31, 2008
(1)
|
% Act
(2)
|
% Lfl
(3)
|
|||||||||||||
Spot
revenues
|
$ | 1,872 | $ | 666 | 181.1 | % | 158.9 | % | ||||||||
Non-spot
revenues
|
1,648 | 597 | 176.0 | % | 161.2 | % | ||||||||||
Net
Revenues
|
$ | 3,520 | $ | 1,263 | 178.7 | % | 160.0 | % | ||||||||
Represented
by
|
||||||||||||||||
Broadcast
operations
|
$ | 3,517 | $ | 1,261 | 178.9 | % | 160.1 | % | ||||||||
Internet
operations
|
3 | 2 | 50.0 | % | 50.0 | % | ||||||||||
Content
operations
|
- | - | - | % | - | % | ||||||||||
Net
Revenues
|
$ | 3,520 | $ | 1,263 | 178.7 | % | 160.0 | % |
BULGARIA
FINANCIAL INFORMATION
|
||||||||||||||||
(US$
000's)
|
||||||||||||||||
Movement
|
||||||||||||||||
For
the year ended
December 31, 2009
|
For
the period from
August
1, 2008 to
December 31, 2008
(1)
|
% Act
(2)
|
% Lfl
3)
|
|||||||||||||
EBITDA
|
$ | (44,774 | ) | $ | (10,185 | ) |
Nm
(4)
|
Nm
(4)
|
||||||||
Represented
by
|
||||||||||||||||
Broadcast
operations
|
$ | (44,303 | ) | $ | (10,182 | ) |
Nm
(4)
|
Nm
(4)
|
||||||||
Internet
operations
|
(471 | ) | (3 | ) |
Nm
(4)
|
Nm
(4)
|
||||||||||
Content
operations
|
- | - | - | % | - | % | ||||||||||
EBITDA
|
$ | (44,774 | ) | $ | (10,185 | ) |
Nm
(4)
|
Nm
(4)
|
||||||||
EBITDA
Margin
|
Nm
(4)
|
Nm
(4)
|
Nm
(4)
|
Nm
(4)
|
For
the Years Ended December 31,
|
||||||||||||||||||||||||
2009
|
2008
|
Movement
|
2008
|
2007
|
Movement
|
|||||||||||||||||||
All
day audience share
|
22.8 | % | 22.5 | % | 0.3 | % | 22.5 | % | 18.7 | % | 3.7 | % | ||||||||||||
All
day ratings
|
3.7 | % | 3.4 | % | 0.3 | % | 3.4 | % | 3.0 | % | 0.4 | % | ||||||||||||
Prime
time audience share
|
27.4 | % | 25.3 | % | 2.1 | % | 25.3 | % | 19.7 | % | 5.6 | % | ||||||||||||
Prime
time ratings
|
9.9 | % | 8.8 | % | 1.1 | % | 8.8 | % | 7.2 | % | 1.6 | % |
|
||||||||||||||||||||||||||||||||
For the Years Ended December 31, (US$ 000’s) | ||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
Spot
revenues
|
$ | 41,980 | $ | 45,946 | (8.6 | )% | (3.0 | )% | $ | 45,946 | $ | 29,675 | 54.8 | % | 44.3 | % | ||||||||||||||||
Non-spot
revenues
|
7,159 | 8,705 | (17.8 | )% | (11.9 | )% | 8,705 | 7,518 | 15.8 | % | 4.9 | % | ||||||||||||||||||||
Net
Revenues
|
$ | 49,139 | $ | 54,651 | (10.1 | )% | (4.4 | )% | $ | 54,651 | $ | 37,193 | 46.9 | % | 36.1 | % | ||||||||||||||||
Represented
by
|
||||||||||||||||||||||||||||||||
Broadcast
operations
|
$ | 48,543 | $ | 54,083 | (10.2 | )% | (4.6 | )% | $ | 54,083 | $ | 36,901 | 46.6 | % | 35.7 | % | ||||||||||||||||
Internet
operations
|
596 | 568 | 4.9 | % | 12.5 | % | 568 | 292 | 94.5 | % | 94.5 | % | ||||||||||||||||||||
Content
operations
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Net
Revenues
|
$ | 49,139 | $ | 54,651 | (10.1 | )% | (4.4 | )% | $ | 54,651 | $ | 37,193 | 46.9 | % | 36.1 | % |
|
||||||||||||||||||||||||||||||||
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
EBITDA
|
$ | 223 | $ | (5,415 | ) | 104.1 | % | 104.6 | % | $ | (5,415 | ) | $ | (13,882 | ) | 61.0 | % | 64.1 | % | |||||||||||||
Represented
by
|
||||||||||||||||||||||||||||||||
Broadcast
operations
|
$ | 1,588 | $ | (3,503 | ) | 145.3 | % | 152.7 | % | $ | (3,503 | ) | $ | (13,814 | ) | 74.6 | % | 76.6 | % | |||||||||||||
Internet
operations
|
(1,365 | ) | (1,912 | ) | 28.6 | % | 25.0 | % | (1,912 | ) | (68 | ) |
Nm
(3)
|
Nm
(3)
|
||||||||||||||||||
Content
operations
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
EBITDA
|
$ | 223 | $ | (5,415 | ) | 104.1 | % | 104.6 | % | $ | (5,415 | ) | $ | (13,882 | ) | 61.0 | % | 64.1 | % | |||||||||||||
EBITDA
Margin
|
0 | % | (10 | )% | (10 | )% | (9 | )% | (10 | )% | (37 | )% | 27 | % | 28 | % | ||||||||||||||||
|
·
|
a
20% decrease in the cost of programming compared to 2008, following a cost
optimization program reflecting savings in both foreign and local program
syndication, partially offset by costs relating to the
production of ‘In Magazin’, a locally produced daily magazine
show;
|
|
·
|
an
11% increase in other operating costs compared to 2008 due to higher
staff-related costs due to higher headcount;
and
|
|
·
|
an
18% decrease in selling, general and administrative expenses compared to
2008, primarily due to lower marketing
expenses.
|
For
the Years Ended December 31,
|
||||||||||||||||||||||||
2009
|
2008
|
Movement
|
2008
|
2007
|
Movement
|
|||||||||||||||||||
All
day audience share
|
43.7 | % | 42.0 | % | 1.7 | % | 42.0 | % | 43.0 | % | (1.0 | )% | ||||||||||||
All
day ratings
|
4.8 | % | 4.8 | % | 0.0 | % | 4.8 | % | 4.8 | % | 0.0 | % | ||||||||||||
Prime
time audience share
|
48.9 | % | 46.3 | % | 2.6 | % | 46.3 | % | 46.8 | % | (0.5 | )% | ||||||||||||
Prime
time ratings
|
14.2 | % | 13.6 | % | 0.6 | % | 13.6 | % | 14.1 | % | (0.5 | )% |
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
Spot
revenues
|
$ | 242,354 | $ | 345,077 | (29.8 | )% | (22.2 | )% | $ | 345,077 | $ | 254,545 | 35.6 | % | 16.1 | % | ||||||||||||||||
Non-spot
revenues
|
33,529 | 31,469 | 6.5 | % | 17.7 | % | 31,469 | 24,692 | 27.4 | % | 8.2 | % | ||||||||||||||||||||
Net
Revenues
|
$ | 275,883 | $ | 376,546 | (26.7 | )% | (18.8 | )% | $ | 376,546 | $ | 279,237 | 34.8 | % | 15.4 | % | ||||||||||||||||
Represented
by
|
||||||||||||||||||||||||||||||||
Broadcast
operations
|
$ | 271,733 | $ | 374,100 | (27.4 | )% | (19.5 | )% | $ | 374,100 | $ | 278,785 | 34.2 | % | 14.8 | % | ||||||||||||||||
Internet
operations
|
4,150 | 2,446 | 69.7 | % | 79.2 | % | 2,446 | 452 |
Nm
(3)
|
Nm
(3)
|
||||||||||||||||||||||
Content
operations
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Net
Revenues
|
$ | 275,883 | $ | 376,546 | (26.7 | )% | (18.8 | )% | $ | 376,546 | $ | 279,237 | 34.8 | % | 15.4 | % |
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
EBITDA
|
$ | 128,463 | $ | 208,655 | (38.4 | )% | (31.9 | )% | $ | 208,655 | $ | 156,496 | 33.3 | % | 15.0 | % | ||||||||||||||||
Represented
by
|
||||||||||||||||||||||||||||||||
Broadcast
operations
|
$ | 132,073 | $ | 212,618 | (37.9 | )% | (31.3 | )% | $ | 212,618 | $ | 157,362 | 35.1 | % | 16.5 | % | ||||||||||||||||
Internet
operations
|
(3,610 | ) | (3,963 | ) | 8.9 | % | 2.2 | % | (3,963 | ) | (866 | ) |
Nm
(3)
|
(271.7 | )% | |||||||||||||||||
Content
operations
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
EBITDA
|
$ | 128,463 | $ | 208,655 | (38.4 | )% | (31.9 | )% | $ | 208,655 | $ | 156,496 | 33.3 | % | 15.0 | % | ||||||||||||||||
EBITDA
Margin
|
47 | % | 55 | % | (8 | )% | (8 | )% | 55 | % | 56 | % | (1 | )% | (1 | )% |
·
|
a
6% decrease in the cost of programming compared to 2008 following a cost
optimization program resulting in savings in both foreign and local
program syndication. Notwithstanding the decrease in the cost of
programming, production costs increased during 2009 primarily due to an
increase in reality and entertainment shows included in the fall
schedule,
|
·
|
a
7% decrease in selling, general and administrative expenses compared to
2008 primarily due to lower marketing and travel expenses; partially
offset by
|
·
|
a
9% increase in other operating costs compared to 2008, primarily due to
higher fees paid for digital transmission as a result of broadcasting two
of our channels in DVB-T rather than one in 2008, which more than offset
lower staff-related costs.
|
For
the Years Ended December 31,
|
||||||||||||||||||||||||
2009
|
2008
|
Movement
|
2008
|
2007
|
Movement
|
|||||||||||||||||||
All
day audience share (all channels)
|
27.4 | % | 28.8 | % | (1.4 | )% | 28.8 | % | 30.6 | % | (1.8 | )% | ||||||||||||
All
day ratings (all channels)
|
4.5 | % | 4.5 | % | 0.0 | % | 4.5 | % | 4.1 | % | 0.4 | % | ||||||||||||
Prime
time audience share (all channels)
|
32.2 | % | 32.6 | % | (0.4 | )% | 32.6 | % | 32.4 | % | 0.2 | % | ||||||||||||
Prime
time ratings (all channels)
|
10.6 | % | 10.8 | % | (0.2 | )% | 10.8 | % | 9.6 | % | 1.2 | % |
|
||||||||||||||||||||||||||||||||
For the Years Ended December 31, (US$ 000’s) | ||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
Spot
revenues
|
$ | 153,147 | $ | 253,649 | (39.6 | )% | (27.6 | )% | $ | 253,649 | $ | 202,414 | 25.3 | % | 25.3 | % | ||||||||||||||||
Non-spot
revenues
|
23,354 | 20,978 | 11.3 | % | 34.6 | % | 20,978 | 12,988 | 61.5 | % | 61.5 | % | ||||||||||||||||||||
Net
Revenues
|
$ | 176,501 | $ | 274,627 | (35.7 | )% | (22.9 | )% | $ | 274,627 | $ | 215,402 | 27.5 | % | 27.5 | % | ||||||||||||||||
Represented
by
|
||||||||||||||||||||||||||||||||
Broadcast
operations
|
$ | 175,517 | $ | 273,270 | (35.8 | )% | (22.9 | )% | $ | 273,270 | $ | 214,976 | 27.1 | % | 27.1 | % | ||||||||||||||||
Internet
operations
|
984 | 1,357 | (27.5 | )% | (11.5 | )% | 1,357 | 426 | 218.5 | % | 218.5 | % | ||||||||||||||||||||
Content
operations
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Net
Revenues
|
$ | 176,501 | $ | 274,627 | (35.7 | )% | (22.9 | )% | $ | 274,627 | $ | 215,402 | 27.5 | % | 27.5 | % | ||||||||||||||||
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
EBITDA
|
$ | 38,510 | $ | 111,783 | (65.5 | )% | (58.4 | )% | $ | 111,783 | $ | 93,075 | 20.1 | % | 20.1 | % | ||||||||||||||||
Represented
by
|
||||||||||||||||||||||||||||||||
Broadcast
operations
|
$ | 40,857 | $ | 112,523 | (63.7 | )% | (56.2 | )% | $ | 112,523 | $ | 93,585 | 20.2 | % | 20.2 | % | ||||||||||||||||
Internet
operations
|
(2,347 | ) | (740 | ) | (217.2 | )% | (254.5 | )% | (740 | ) | (510 | ) | (45.1 | )% | (45.1 | )% | ||||||||||||||||
Content
operations
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
EBITDA
|
$ | 38,510 | $ | 111,783 | (65.5 | )% | (58.4 | )% | $ | 111,783 | $ | 93,075 | 20.1 | % | 20.1 | % | ||||||||||||||||
EBITDA
Margin
|
22 | % | 41 | % | (19 | )% | (18 | )% | 41 | % | 43 | % | (2 | )% | (2 | )% |
·
|
a
17% increase in the cost of acquired programming compared to 2008,
reflecting the higher cost of foreign acquired programming and an increase
in acquired sport events;
|
·
|
a
14% decrease in the cost of production compared to 2008 following a cost
optimization program in the 2009 fall
schedule;
|
·
|
a
9% decrease in other operating costs compared to 2008, primarily due to
lower staff-related costs; and
|
·
|
a
24% increase in selling, general and administrative expenses compared to
2008, primarily due to increases in the provision for doubtful debts and
in marketing and selling costs.
|
For
the Years Ended December 31,
|
||||||||||||||||||||||||
2009
|
2008
|
Movement
|
2008
|
2007
|
Movement
|
|||||||||||||||||||
All
day audience share
|
31.9 | % | 35.1 | % | (3.2 | )% | 35.1 | % | 35.5 | % | (0.4 | )% | ||||||||||||
All
day ratings
|
4.3 | % | 4.5 | % | (0.2 | )% | 4.5 | % | 4.8 | % | (0.3 | )% | ||||||||||||
Prime
time audience share
|
33.9 | % | 36.8 | % | (2.9 | )% | 36.8 | % | 38.5 | % | (1.7 | )% | ||||||||||||
Prime
time ratings
|
11.7 | % | 12.2 | % | (0.5 | )% | 12.2 | % | 13.2 | % | (1.0 | )% |
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
Spot
revenues
|
$ | 97,894 | $ | 122,527 | (20.1 | )% | (17.7 | )% | $ | 122,527 | $ | 106,445 | 15.1 | % | 1.0 | % | ||||||||||||||||
Non-spot
revenues
|
9,462 | 10,165 | (6.9 | )% | (4.0 | )% | 10,165 | 4,094 | 148.3 | % | 115.2 | % | ||||||||||||||||||||
Net
Revenues
|
$ | 107,356 | $ | 132,692 | (19.1 | )% | (16.7 | )% | $ | 132,692 | $ | 110,539 | 20.0 | % | 5.3 | % | ||||||||||||||||
Represented
by
|
||||||||||||||||||||||||||||||||
Broadcast
operations
|
$ | 106,479 | $ | 132,367 | (19.6 | )% | (17.1 | )% | $ | 132,367 | $ | 110,158 | 20.2 | % | 5.4 | % | ||||||||||||||||
Internet
operations
|
877 | 325 | 169.8 | % | 168.2 | % | 325 | 381 | (14.7 | )% | (26.7 | )% | ||||||||||||||||||||
Content
operations
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Net
Revenues
|
$ | 107,356 | $ | 132,692 | (19.1 | )% | (16.7 | )% | $ | 132,692 | $ | 110,539 | 20.0 | % | 5.3 | % | ||||||||||||||||
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
EBITDA
|
$ | 13,880 | $ | 50,228 | (72.4 | )% | (72.1 | )% | $ | 50,228 | $ | 41,532 | 20.9 | % | 7.6 | % | ||||||||||||||||
Represented
by
|
||||||||||||||||||||||||||||||||
Broadcast
operations
|
$ | 15,156 | $ | 51,452 | (70.5 | )% | (70.2 | )% | $ | 51,452 | $ | 41,957 | 22.6 | % | 9.0 | % | ||||||||||||||||
Internet
operations
|
(1,276 | ) | (1,224 | ) | (4.2 | )% | (9.2 | )% | (1,224 | ) | (425 | ) | (188.0 | )% | (140.7 | )% | ||||||||||||||||
Content
operations
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
EBITDA
|
$ | 13,880 | $ | 50,228 | (72.4 | )% | (72.1 | )% | $ | 50,228 | $ | 41,532 | 20.9 | % | 7.6 | % | ||||||||||||||||
EBITDA
Margin
|
13 | % | 38 | % | (25 | )% | (26 | )% | 38 | % | 38 | % | 0 | % | 1 | % |
·
|
a
23% increase in the cost of programming compared to 2008, reflecting the
higher cost of foreign acquired programming, the additional programming
costs of US$ 1.6 million relates to the launch of DOMA and our schedule
including a higher proportion local fiction in 2009 than in
2008;
|
·
|
a
5% increase in other operating costs compared to 2008, primarily due to
increased staff-related costs, as savings from reductions in headcount
following a redundancy program in the first quarter were more than offset
by increases in internet staff-related costs;
and
|
·
|
a
21% increase in selling, general and administrative expenses compared to
2008, reflecting payments made to the Slovak Audiovisual Fund and
marketing costs relating to the launch of
DOMA.
|
For
the Years Ended December 31,
|
||||||||||||||||||||||||
2009
|
2008
(1)
|
Movement
|
2008
|
2007
|
Movement
|
|||||||||||||||||||
All
day audience share
|
39.6 | % | 40.0 | % | (0.4 | )% | 40.0 | % | 40.2 | % | (0.2 | )% | ||||||||||||
All
day ratings
|
3.7 | % | 3.8 | % | (0.1 | )% | 3.7 | % | 3.9 | % | (0.2 | )% | ||||||||||||
Prime
time audience share
|
48.8 | % | 47.4 | % | 1.4 | % | 47.4 | % | 47.8 | % | (0.4 | )% | ||||||||||||
Prime
time ratings
|
11.9 | % | 11.6 | % | 0.3 | % | 11.6 | % | 11.9 | % | (0.3 | )% |
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
Spot
revenues
|
$ | 59,011 | $ | 69,497 | (15.1 | )% | (11.1 | )% | $ | 69,497 | $ | 60,559 | 14.8 | % | 8.4 | % | ||||||||||||||||
Non-spot
revenues
|
7,699 | 11,200 | (31.3 | )% | (26.9 | )% | 11,200 | 9,088 | 23.2 | % | 18.6 | % | ||||||||||||||||||||
Segment
Net Revenues
|
$ | 66,710 | $ | 80,697 | (17.3 | )% | (13.3 | )% | $ | 80,697 | $ | 69,647 | 15.9 | % | 9.7 | % | ||||||||||||||||
Represented
by
|
||||||||||||||||||||||||||||||||
Broadcast
operations
|
$ | 63,385 | $ | 75,963 | (16.6 | )% | (12.6 | )% | $ | 75,963 | $ | 67,574 | 12.4 | % | 6.5 | % | ||||||||||||||||
Internet
operations
|
3,325 | 4,734 | (29.8 | )% | (24.8 | )% | 4,734 | 2,073 | 128.4 | % | 114.2 | % | ||||||||||||||||||||
Content
operations
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Segment
Net Revenues
|
$ | 66,710 | $ | 80,697 | (17.3 | )% | (13.3 | )% | $ | 80,697 | $ | 69,647 | 15.9 | % | 9.7 | % |
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
EBITDA
|
$ | 17,822 | $ | 25,413 | (29.9 | )% | (27.2 | )% | $ | 25,413 | $ | 22,767 | 11.6 | % | 7.1 | % | ||||||||||||||||
Represented
by
|
||||||||||||||||||||||||||||||||
Broadcast
operations
|
$ | 17,551 | $ | 24,620 | (28.7 | )% | (25.4 | )% | $ | 24,620 | $ | 24,249 | 1.5 | % | (2.2 | )% | ||||||||||||||||
Internet
operations
|
271 | 793 | (65.8 | )% | (71.0 | )% | 793 | (1,482 | ) | 153.5 | % | 154.8 | % | |||||||||||||||||||
Content
operations
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
EBITDA
|
$ | 17,822 | $ | 25,413 | (29.9 | )% | (27.2 | )% | $ | 25,413 | $ | 22,767 | 11.6 | % | 7.1 | % | ||||||||||||||||
EBITDA
Margin
|
27 | % | 31 | % | (4 | )% | (5 | )% | 31 | % | 33 | % | (2 | )% | (1 | )% |
·
|
a
3% decrease in the cost of programming compared to 2008, reflecting a
reduction in the proportion of locally produced programming in our
schedule partially offset by the higher cost of acquired programming,
particularly in the first half of
2009;
|
·
|
a
decrease of 11% in other operating costs compared to 2008, primarily due
to lower staff-related costs, offset by the initial redundancy-related
costs reflected in the first quarter of 2009 and higher fees paid for
digital transmission as a result of broadcasting our channels in DVB-T;
and
|
·
|
a
14% decrease in selling, general and administrative expenses compared to
2008, primarily due to lower marketing and travel
expenses.
|
For
the Years Ended December 31,
|
||||||||||||||||||||||||
2009
|
2008
|
Movement
|
2008
|
2007
|
Movement
|
|||||||||||||||||||
All
day audience share
|
9.9 | % | 11.7 | % | (1.8 | )% | 11.7 | % | 15.8 | % | (4.1 | )% | ||||||||||||
All
day ratings
|
1.4 | % | 1.5 | % | (0.1 | )% | 1.5 | % | 2.0 | % | (0.5 | )% | ||||||||||||
Prime
time audience share
|
12.2 | % | 13.0 | % | (0.8 | )% | 13.0 | % | 18.2 | % | (5.2 | )% | ||||||||||||
Prime
time ratings
|
4.0 | % | 4.2 | % | (0.2 | )% | 4.2 | % | 5.9 | % | (1.7 | )% |
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
Spot
revenues
|
$ | 25,746 | $ | 82,480 | (68.8 | )% | (68.8 | )% | $ | 82,480 | $ | 103,111 | (20.0 | )% | (20.0 | )% | ||||||||||||||||
Non-spot
revenues
|
6,287 | 16,978 | (63.0 | )% | (63.0 | )% | 16,978 | 23,727 | (28.4 | )% | (28.4 | )% | ||||||||||||||||||||
Net
Revenues
|
$ | 32,033 | $ | 99,458 | (67.8 | )% | (67.8 | )% | $ | 99,458 | $ | 126,838 | (21.6 | )% | (21.6 | )% | ||||||||||||||||
Represented
by
|
||||||||||||||||||||||||||||||||
Broadcast
operations
|
$ | 31,850 | $ | 99,359 | (67.9 | )% | (67.9 | )% | $ | 99,359 | $ | 126,838 | (21.7 | )% | (21.7 | )% | ||||||||||||||||
Internet
operations
|
183 | 99 | 84.8 | % | 84.8 | % | 99 | - | - | % | - | % | ||||||||||||||||||||
Content
operations
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
Net
Revenues
|
$ | 32,033 | $ | 99,458 | (67.8 | )% | (67.8 | )% | $ | 99,458 | $ | 126,838 | (21.6 | )% | (21.6 | )% |
For
the Years Ended December 31, (US$ 000’s)
|
||||||||||||||||||||||||||||||||
Movement
|
Movement
|
|||||||||||||||||||||||||||||||
2009
|
2008
|
%
Act
(1)
|
%
Lfl
(2)
|
2008
|
2007
|
%
Act
(1)
|
%
Lfl
(2)
|
|||||||||||||||||||||||||
EBITDA
|
$ | (40,471 | ) | $ | (34,799 | ) | (16.3 | )% | (16.3 | )% | $ | (34,799 | ) | $ | 23,464 | (248.3 | )% | (248.3 | )% | |||||||||||||
Represented
by
|
||||||||||||||||||||||||||||||||
Broadcast
operations
|
$ | (39,498 | ) | $ | (33,140 | ) | (19.2 | )% | (19.2 | )% | $ | (33,140 | ) | $ | 23,991 | (238.1 | )% | (238.1 | )% | |||||||||||||
Internet
operations
|
(973 | ) | (1,659 | ) | 41.4 | % | 41.4 | % | (1,659 | ) | (527 | ) | (214.8 | )% | (214.8 | )% | ||||||||||||||||
Content
operations
|
- | - | - | % | - | % | - | - | - | % | - | % | ||||||||||||||||||||
EBITDA
|
$ | (40,471 | ) | $ | (34,799 | ) | (16.3 | )% | (16.3 | )% | $ | (34,799 | ) | $ | 23,464 | (248.3 | )% | (248.3 | )% | |||||||||||||
EBITDA
Margin
|
(126 | )% | (35 | )% | (91 | )% | (91 | )% | (35 | )% | 18 | % | (53 | )% | (53 | )% |
·
|
a
47% decrease in the cost of programming compared to 2008 due to the
implementation of a lower cost schedule and a reduction in the size of the
library following the significant accelerated amortization charges in
2008;
|
·
|
a
25% decrease in other operating costs compared to 2008 primarily due to a
reduction in headcount; and
|
·
|
a
69% decrease in selling, general and administrative expenses compared in
2008 primarily due to lower office
overheads.
|
ROMANIA
(MEDIA PRO ENTERTAINMENT) FINANCIAL INFORMATION
|
For
the period since
acquisition
to
December 31, 2009
(US$
000's) (1)
|
||||
Content
revenues
|
$ | 5,396 | ||
Net
Revenues
|
$ | 5,396 | ||
Represented
by
|
||||
Content
operations
|
$ | 5,396 | ||
Net
Revenues
|
$ | 5,396 |
ROMANIA
(MEDIA PRO ENTERTAINMENT) FINANCIAL INFORMATION
|
For
the period since
acquisition
to
December
31, 2009
(US$
000's) (1)
|
||||
EBITDA
|
$ | (266 | ) | |
Represented
by
|
||||
Content
operations
|
$ | (266 | ) | |
EBITDA
|
$ | (266 | ) | |
EBITDA
Margin
|
Nm
(2)
|
(US$
000’s)
|
December
31, 2009
|
December
31, 2008
|
Movement
|
|||||||||
Current
assets
|
$ | 829,805 | $ | 494,756 | 67.7 | % | ||||||
Non-current
assets
|
2,042,982 | 1,911,860 | 6.9 | % | ||||||||
Current
liabilities
|
349,723 | 228,673 | 52.9 | % | ||||||||
Non-current
liabilities
|
1,351,224 | 1,079,498 | 25.2 | % | ||||||||
CME
Ltd. shareholders’ equity
|
$ | 1,177,589 | $ | 1,095,258 | 7.5 | % | ||||||
Noncontrolling
interests in consolidated subsidiaries
|
(5,749 | ) | 3,187 | (280.4 | )% |
(US$
000’s)
|
For
the Years Ended December 31,
|
|||||||||||
2009
|
2008
|
2007
|
||||||||||
Net
cash (used in)/ generated from continuing operating
activities
|
$ | (31,806 | ) | $ | 135,555 | $ | 106,695 | |||||
Net
cash used in continuing investing activities
|
(99,163 | ) | (588,798 | ) | (235,898 | ) | ||||||
Net
cash received from financing activities
|
474,855 | 444,558 | 135,530 | |||||||||
Net
cash used in discontinued operations-operating activities
|
(1,294 | ) | (4,920 | ) | (6,001 | ) | ||||||
Net
cash used in discontinued operations-investing activities
|
- | (495 | ) | (1,520 | ) | |||||||
Impact
of exchange rate fluctuations on cash
|
8,504 | (21,279 | ) | (1,896 | ) | |||||||
Net
increase / (decrease) in cash and cash
equivalents
|
$ | 351,096 | $ | (35,379 | ) | $ | (3,090 | ) |
|
·
|
the
issuance of 14.5 million shares of Class A common stock and 4.5
million shares of Class B common stock to an affiliate of Time Warner for
an aggregate offering price of US$ 234.4 million, net of fees paid;
and
|
|
·
|
the
drawdown of our revolving credit facilities to maximize liquidity and the
issuance of EUR 440.0 million (net of fees) (approximately US$ 633.9
million, net of fees) of our 2009 Fixed Rate
Notes,
|
|
·
|
payments
of approximately US$ 371.1 million to repurchase our EUR 245.0 million
2005 Fixed Rate Notes representing the redemption price and related fees;
and
|
|
·
|
the
repayment of EUR 127.5 million (approximately US$ 187.3 million at the
date of repayment) outstanding on the EBRD
Loan.
|
Contractual
Obligations
|
Payments
due by period (US$ 000’s)
|
|||||||||||||||||||
Total
|
Less
than 1 year
|
1-3
years
|
3-5
years
|
More
than 5 years
|
||||||||||||||||
Long-Term
Debt – principal
|
$ | 1,444,284 | $ | 116,617 | $ | 217 | $ | 691,567 | $ | 635,883 | ||||||||||
Long-Term
Debt – interest (1)
|
534,633 | 123,903 | 191,929 | 160,466 | 58,335 | |||||||||||||||
Capital
Lease Obligations
|
6,801 | 1,465 | 2,324 | 930 | 2,082 | |||||||||||||||
Operating
Leases
|
36,916 | 7,267 | 9,474 | 7,442 | 12,733 | |||||||||||||||
Unconditional
Purchase Obligations
|
512,805 | 156,253 | 289,630 | 60,997 | 5,925 | |||||||||||||||
Other
Long-Term Obligations
|
1,163 | 1,163 | - | - | - | |||||||||||||||
FIN
48 (ASC 740) obligations
|
851 | 27 | 824 | - | - | |||||||||||||||
Deferred
consideration
|
1,614 | 1,614 | - | - | - | |||||||||||||||
Total
Contractual Obligations
|
$ | 2,539,067 | $ | 408,309 | $ | 494,398 | $ | 921,402 | $ | 714,958 |
December
31, 2009
(US$
000’s)
|
||||||||
Corporate
|
(1) – (4) | $ | 1,253,928 | |||||
Czech
Republic
|
(5) – (7) | 78,942 | ||||||
Slovenia
|
(8) | 37,675 | ||||||
Romania
(Media Pro Entertainment)
|
(9) | 1,374 | ||||||
Total
|
$ | 1,371,919 |
(1)
|
As
at December 31, 2009 we had EUR 590 million (approximately US$ 850.0
million) of Senior Notes outstanding, comprising EUR 440.0 million
(approximately US$ 633.9 million) of the 2009 Fixed Rate Notes and EUR
150.0 million (approximately US$ 216.1 million) of the Floating
Rate Notes, which bear interest at nine-month Euro Inter-Bank Offered Rate
(“EURIBOR”) plus 1.625%. The applicable rate at December 31, 2009 was
2.62%.
|
(2)
|
As
of December 31, 2009 we had US$ 475.0 million principal amount of
Convertible Notes outstanding that mature on March 15,
2013. Interest is payable semi-annually in arrears on each
March 15 and September 15.
|
(3)
|
On
July 21, 2006, we entered into a five-year revolving loan agreement for
EUR 100.0 million (approximately US$ 144.1 million) arranged by the
European Bank for Reconstruction and Development (“EBRD”) and on August
22, 2007, we entered into a second revolving loan agreement for EUR 50.0
million (approximately US$ 72.0 million) arranged by EBRD (together with
the EUR 100.0 million facility, the “EBRD Loan”). ING Bank N.V.
(“ING”) and Ceska Sporitelna, a.s. (“CS”) each participated in the EBRD
Loan for EUR 37.5 million (approximately US$ 54.0 million). On September
17, 2009 we repaid the full aggregate principal amount of EUR 127.5
million (approximately US$ 187.3 million at the date of repayment)
outstanding and simultaneously terminated both agreements. In connection
with extinguishing these facilities, we incurred repayment charges and
other costs of US$ 0.6 million. We also wrote off all remaining
capitalized issuance costs and these charges were recognized as a loss on
extinguishment within interest
expense.
|
(4)
|
We
have an uncommitted multicurrency overdraft facility for EUR 5.0 million
(approximately US$ 7.2 million) from Bank Mendes Gans (“BMG”), a
subsidiary of ING, as part of a cash pooling arrangement. The cash pooling
arrangement with BMG enables us to receive credit across the group in
respect of cash balances which our subsidiaries in the Netherlands,
Bulgaria, the Czech Republic, Romania, the Slovak Republic, Slovenia and
Ukraine deposit with BMG. Cash deposited by our subsidiaries with BMG is
pledged as security against the drawings of other subsidiaries up to the
amount deposited. Interest is payable at the relevant money
market rate plus 2%. Because each of our subsidiaries holds its own
account in its own name with BMG, we consider our drawings on BMG, as
debt, although our overall balance with BMG is currently positive. The
overdraft facility allows us to have an overall net debit balance with BMG
of up to EUR 5.0 million. As of December 31, 2009, the full EUR 5.0
million (approximately US$ 7.2 million) facility was available to be
drawn.
|
Net
Deposits
|
Net
Drawings
|
|||||||
Corporate
|
$ | 7,237 | $ | - | ||||
Czech
Republic
|
38 | - | ||||||
Slovakia
|
3,299 | - | ||||||
Slovenia
|
- | 5,234 | ||||||
Ukraine
|
297 | - | ||||||
Total
|
$ | 10,871 | $ | 5,234 |
(5)
|
As
of December 31, 2009, CET 21 had drawn, in CZK, the full CZK 1.2 billion
(approximately US$ 65.3 million) of a credit facility with CS available
until December 31, 2010. This facility may, at the option of
CET 21, be drawn in CZK, US$ or EUR and bears interest at the three-month,
six-month or twelve-month London Inter-Bank Offer Rate (“LIBOR”), EURIBOR
or Prague Inter-Bank Offered Rate (“PRIBOR”) rate plus 1.65%; a rate of
3.19% applied to the balance outstanding at December 31, 2009 and is based
on PRIBOR. A non-utilization fee of 0.25% is payable on the undrawn
portion of this facility, which decreases to 0.125% of the undrawn portion
if more than 50% of the loan is drawn. Drawings under this facility are
secured by a pledge of receivables, which are also subject to a factoring
arrangement with Factoring Ceska Sporitelna, a.s. (“FCS”), a subsidiary of
CS.
|
(6)
|
CET
21 has a working capital credit facility of CZK 250.0 million
(approximately US$ 13.6 million) with CS, which matures on December 31,
2010. This working capital facility bears interest at the
three-month PRIBOR rate plus 1.65%. The applicable rate at December 31,
2009 was 3.19%. This facility is secured by a pledge of receivables, which
are also subject to a factoring arrangement with CS. As at
December 31, 2009, the full CZK 250.0 million (approximately US$ 13.6
million) was drawn under this
facility.
|
(7)
|
As
at December 31, 2009, there were no drawings under a CZK 300.0 million
(approximately US$ 16.3 million) factoring facility with
CS. This facility is available until June 30, 2011 and bears
interest at the rate of one-month PRIBOR plus 1.40% for the period that
actively assigned accounts receivable are
outstanding.
|
(8)
|
In
July 2005, Pro Plus entered into a revolving five-year facility agreement
for up to EUR 37.5 million (approximately US$ 54.0 million) in aggregate
principal amount with ING, Nova Ljubljanska Banka d.d., Ljubljana and Bank
Austria Creditanstalt d.d., Ljubljana. The facility
availability amortizes by 10.0% each year for four years commencing one
year after signing, with 60.0% repayable after five years. This
facility is secured by a pledge of the bank accounts of Pro Plus, the
assignment of certain receivables, a pledge of our interest in Pro Plus
and a guarantee of our wholly-owned subsidiary CME Media Enterprises
B.V. Loans drawn under this facility bear interest at a rate of
EURIBOR for the period of drawing plus a margin of between 2.10% and 3.60%
that varies according to the ratio of consolidated net debt to
consolidated broadcasting cash flow for Pro Plus. As of
December 31, 2009, the full EUR 22.5 million (approximately US$ 32.4
million) available under this facility was
drawn.
|
(9)
|
At
December 31, 2009, Media Pro Entertainment has an aggregate principal of
RON 8.0 million (approximately US$ 2.7 million) of loans outstanding to
Central National al Cinematografei ("CNC"), a state body which provides
financing for qualifying filmmaking projects. Upon acceptance of a
particular project the CNC awards an agreed level of funding to each
project in the form of an interest free loan. Loans to the CNC are
typically advanced for a period of ten years and are repaid through
exploitation of the film content. At December 31, 2009 we had 11 loans
outstanding to the CNC with maturity dates ranging from 2011 to 2020. The
carrying amount at December 31, 2009 is shown net of a fair value
adjustment to reflect the interest free nature of the loans arising on
acquisition.
|
Senior
and Convertible Notes
|
Corporate
|
Outlook
|
|
S&P
|
B-
|
B-
|
negative
|
Moody’s
|
B2
|
negative
|
Measurement
|
Valuation
Method
|
|
Recoverability
of cash flows
|
Undiscounted
future cash flows
|
|
Fair
value of indefinite-lived broadcast licenses
|
Build-out
method
|
|
Fair
value of indefinite-lived trademarks
|
Relief
from royalty method
|
|
Fair
value of reporting units
|
Discounted
cash flow model
|
Reporting
unit
|
Break
even growth
rate
(%) (1)
|
Growth
rate currently
implied
(%) (1)
|
||||||
Croatia
|
9.8 | % | 13.7 | % | ||||
Czech
Republic
|
6.4 | % | 9.4 | % | ||||
Romania
|
14.0 | % | 22.2 | % | ||||
Slovak
Republic
|
17.5 | % | 23.7 | % | ||||
Slovenia
|
13.1 | % | 20.6 | % |
Percentage
change in cost of capital
|
||||||||
Reporting
Unit
|
Between
first and second quarter review
|
Necessary
to break even (second quarter)
|
||||||
Croatia
|
(5.1 | ) % | 22.4 | % | ||||
Czech
Republic
|
(8.2 | ) % | 7.3 | % | ||||
Romania
|
(1.5 | ) % | 47.3 | % | ||||
Slovak
Republic
|
(4.3 | ) % | 29.5 | % | ||||
Slovenia
|
(3.9 | ) % | 61.1 | % |
10%
Adverse Change in
|
Indefinite-Lived
Trademarks
|
Indefinite-Lived
Broadcast
Licenses
|
Goodwill
|
Cost
of Capital
|
None
|
None
|
Czech
Republic (9.8%)
|
Total
Advertising Market
|
None
|
None
|
Czech
Republic (6.2%)
|
Market
Share
|
None
|
None
|
Czech
Republic (6.2%)
|
Forecast
operating costs
|
Not
applicable
|
None
|
None
|
Forecast
capital expenditure
|
Not
applicable
|
None
|
None
|
Perpetuity
Growth rate
|
None
|
None
|
None
|
ITEM
7A.
|
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET
RISK
|
Expected
Maturity Dates
|
||||||||||||||||||||||||
2010
|
2011
|
2012
|
2013
|
2014
|
Thereafter
|
|||||||||||||||||||
Total
Debt in Euro (000’s)
|
||||||||||||||||||||||||
Fixed
Rate
|
- | - | - | - | - | 440,000 | ||||||||||||||||||
Average
Interest Rate
|
- | - | - | - | - | 11.63 | % | |||||||||||||||||
Variable
Rate
|
22,520 | - | - | - | 150,000 | - | ||||||||||||||||||
Average
Interest Rate
|
3.54 | % | - | - | - | 2.62 | % | - | ||||||||||||||||
Total
Debt in US$ (000’s)
|
- | - | - | - | - | - | ||||||||||||||||||
Fixed
Rate
|
- | - | - | 475,000 | - | - | ||||||||||||||||||
Average
Interest Rate
|
- | - | - | 3.50 | % | - | - | |||||||||||||||||
Total
Debt in CZK (000’s)
|
||||||||||||||||||||||||
Variable
Rate
|
1,450,000 | - | - | - | - | - | ||||||||||||||||||
Average
Interest Rate
|
3.19 | % | - | - | - | - | - |
Yearly
interest charge if interest rates increase by
(US$
000s):
|
||||||||||||||||||||||||||||
Value
of Debt as at December 31, 2009 (US$ 000’s)
|
Interest
Rate
as
at
December
31, 2009
|
Yearly
Interest Charge
(US$
000’s)
|
1 | % | 2 | % | 3 | % | 4 | % | 5 | % | ||||||||||||||||
$
248,532
|
2.74 | % | $ | 6,802 | $ | 9,287 | $ | 11,772 | $ | 14,258 | $ | 16,743 | $ | 19,228 | ||||||||||||||
(EUR
172.5 million)
|
||||||||||||||||||||||||||||
$
78,942
|
3.19 | % | 2,518 | 3,308 | 4,097 | 4,887 | 5,676 | 6,465 | ||||||||||||||||||||
(CZK
1,450.0 million)
|
||||||||||||||||||||||||||||
Total
|
$ | 9,320 | $ | 12,595 | $ | 15,869 | $ | 19,145 | $ | 22,419 | $ | 25,693 |
ITEM
8.
|
FINANCIAL
STATEMENTS AND SUPPLEMENTARY DATA
|
December
31, 2009
|
December
31, 2008
|
|||||||
ASSETS
|
||||||||
Current
assets
|
||||||||
Cash
and cash equivalents
|
$ | 458,529 | $ | 107,433 | ||||
Accounts
receivable (net of allowance) (Note 7)
|
186,978 | 221,450 | ||||||
Program
rights, net
|
82,007 | 67,787 | ||||||
Other
current assets (Note 8)
|
102,291 | 98,086 | ||||||
Total
current assets
|
829,805 | 494,756 | ||||||
Non-current
assets
|
||||||||
Investments
(Note 5)
|
- | 16,559 | ||||||
Property,
plant and equipment, net (Note 9)
|
279,436 | 206,667 | ||||||
Program
rights, net
|
184,038 | 113,596 | ||||||
Goodwill
(Note 4)
|
1,136,273 | 1,041,041 | ||||||
Broadcast
licenses and other intangible assets, net (Note 4)
|
398,418 | 514,732 | ||||||
Other
non-current assets (Note 8)
|
44,817 | 19,265 | ||||||
Total
non-current assets
|
2,042,982 | 1,911,860 | ||||||
Total
assets
|
$ | 2,872,787 | $ | 2,406,616 |
December
31, 2009
|
December
31, 2008
|
|||||||
LIABILITIES
AND EQUITY
|
||||||||
Current
liabilities
|
||||||||
Accounts
payable and accrued liabilities (Note 10)
|
$ | 213,699 | $ | 174,885 | ||||
Credit
facilities and obligations under capital leases (Note 11)
|
117,910 | 36,502 | ||||||
Other
current liabilities (Note 12)
|
18,114 | 17,286 | ||||||
Total
current liabilities
|
349,723 | 228,673 | ||||||
Non-current
liabilities
|
||||||||
Credit
facilities and obligations under capital leases (Note 11)
|
6,030 | 38,758 | ||||||
Senior
Debt (Note 6)
|
1,253,928 | 928,525 | ||||||
Other
non-current liabilities (Note 12)
|
91,266 | 112,215 | ||||||
Total
non-current liabilities
|
1,351,224 | 1,079,498 | ||||||
Commitments
and contingencies (Note 21)
|
||||||||
EQUITY:
|
||||||||
CME
Ltd. shareholders’ equity:
|
||||||||
Nil
shares of Preferred Stock of $0.08 each (December 31, 2008 –
nil)
|
- | - | ||||||
56,046,176
shares of Class A Common Stock of $0.08 each (December 31, 2008
–36,024,273)
|
4,484 | 2,882 | ||||||
7,490,936
shares of Class B Common Stock of $0.08 each (December 31, 2008 –
6,312,839)
|
599 | 505 | ||||||
Additional
paid-in capital
|
1,410,587 | 1,126,617 | ||||||
Accumulated
deficit
|
(333,993 | ) | (236,836 | ) | ||||
Accumulated
other comprehensive income
|
95,912 | 202,090 | ||||||
Total
CME Ltd. shareholders’ equity
|
1,177,589 | 1,095,258 | ||||||
Noncontrolling
interests
|
(5,749 | ) | 3,187 | |||||
Total
equity
|
1,171,840 | 1,098,445 | ||||||
Total
liabilities and equity
|
$ | 2,872,787 | $ | 2,406,616 |
For
the Year Ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Net
revenues
|
$ | 713,978 | $ | 1,019,934 | $ | 838,856 | ||||||
Operating
expenses:
|
||||||||||||
Operating
costs
|
134,095 | 145,210 | 116,859 | |||||||||
Cost
of programming
|
389,900 | 438,203 | 327,230 | |||||||||
Depreciation
of station property, plant and equipment
|
53,651 | 51,668 | 32,653 | |||||||||
Amortization
of broadcast licenses and other intangibles (Note 4)
|
21,597 | 35,381 | 24,970 | |||||||||
Cost
of revenues
|
599,243 | 670,462 | 501,712 | |||||||||
Selling,
general and administrative expenses
|
116,072 | 140,517 | 126,688 | |||||||||
Impairment
charge (Note 4)
|
81,843 | 336,752 | - | |||||||||
Operating
(loss) / income
|
(83,180 | ) | (127,797 | ) | 210,456 | |||||||
Interest
income
|
2,916 | 10,006 | 5,728 | |||||||||
Interest
expense (Note 16)
|
(115,771 | ) | (82,481 | ) | (54,936 | ) | ||||||
Foreign
currency exchange gain / (loss), net
|
82,461 | (37,877 | ) | (34,409 | ) | |||||||
Change
in fair value of derivatives (Note 13)
|
1,315 | 6,360 | (3,703 | ) | ||||||||
Other
income
|
1,521 | 2,620 | 7,891 | |||||||||
(Loss)
/ income from continuing operations before tax
|
(110,738 | ) | (229,169 | ) | 131,027 | |||||||
Credit
/ (provision) for income taxes
|
3,193 | (34,525 | ) | (20,822 | ) | |||||||
(Loss)
/ income from continuing operations
|
(107,545 | ) | (263,694 | ) | 110,205 | |||||||
Discontinued
operations, net of tax (Note 20)
|
(262 | ) | (3,785 | ) | (4,480 | ) | ||||||
Net
(Loss) / income
|
(107,807 | ) | (267,479 | ) | 105,725 | |||||||
Net
loss / (income) attributable to noncontrolling interests
|
10,650 | (2,067 | ) | (17,107 | ) | |||||||
Net
(Loss) income attributable to CME Ltd.
|
$ | (97,157 | ) | $ | (269,546 | ) | $ | 88,618 | ||||
Net
(loss) / income
|
(107,807 | ) | (267,479 | ) | 105,725 | |||||||
Currency
translation adjustment
|
(106,604 | ) | (88,609 | ) | 158,825 | |||||||
Obligation
to repurchase shares
|
- | 488 | (488 | ) | ||||||||
Comprehensive
(loss) / income
|
$ | (214,411 | ) | $ | (355,600 | ) | $ | 264,062 | ||||
Comprehensive
income / (loss) attributable to noncontrolling interests
|
11,076 | (2,071 | ) | (17,157 | ) | |||||||
Comprehensive
(loss) / income attributable to CME Ltd.
|
$ | (203,335 | ) | $ | (357,671 | ) | $ | 246,905 |
For
the Year Ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
PER
SHARE DATA (Note 18):
|
||||||||||||
Net
(loss) / income per share:
|
||||||||||||
Continuing
operations - Basic
|
$ | (1.78 | ) | $ | (6.28 | ) | $ | 2.25 | ||||
Continuing
operations - Diluted
|
(1.78 | ) | (6.28 | ) | 2.23 | |||||||
Discontinued
operations – Basic
|
(0.01 | ) | (0.09 | ) | (0.11 | ) | ||||||
Discontinued
operations - Diluted
|
(0.01 | ) | (0.09 | ) | (0.11 | ) | ||||||
Net
(loss) / income attributable to CME Ltd common shareholders –
Basic
|
(1.79 | ) | (6.37 | ) | 2.14 | |||||||
Net
(loss) / income attributable to CME Ltd common shareholders –
Diluted
|
$ | (1.79 | ) | $ | (6.37 | ) | $ | 2.12 | ||||
Weighted
average common shares used in computing per share amounts
(000’s):
|
||||||||||||
Basic
|
54,344 | 42,328 | 41,384 | |||||||||
Diluted
|
54,344 | 42,328 | 41,833 |
CME
Ltd. Shareholders
|
||||||||||||||||||||||||||||||||||||
Class
A
Common
Stock
|
Class
B
Common
Stock
|
Additional
Paid-In Capital
|
Retained
Deficit
|
Accumulated
Other Comprehensive Income
|
Noncontrolling
Interests
|
Total
Equity
|
||||||||||||||||||||||||||||||
Number
of shares
|
Par
value
|
Number
of shares
|
Par
value
|
|||||||||||||||||||||||||||||||||
BALANCE,
December
31, 2006
|
34,412,138 | $ | 2,753 | 6,312,839 | $ | 505 | $ | 931,108 | $ | (30,528 | ) | $ | 131,928 | $ | 26,189 | $ | 1,061,955 | |||||||||||||||||||
Impact
of adoption of FIN 48
|
- | - | - | - | - | (3,219 | ) | - | - | (3,219 | ) | |||||||||||||||||||||||||
Stock-based
compensation
|
- | - | - | - | 6,402 | - | - | - | 6,402 | |||||||||||||||||||||||||||
Shares
issued, net of fees
|
1,275,227 | 102 | - | - | 109,751 | - | - | - | 109,853 | |||||||||||||||||||||||||||
Stock
options exercised
|
315,833 | 25 | - | - | 4,075 | - | - | - | 4,100 | |||||||||||||||||||||||||||
Acquisitions
of noncontrolling interests
|
- | - | - | - | - | - | - | (13,948 | ) | (13,948 | ) | |||||||||||||||||||||||||
Dividends
paid to holders of noncontrolling interests
|
- | - | - | - | - | - | - | (6,243 | ) | (6,243 | ) | |||||||||||||||||||||||||
Net
income
|
- | - | - | - | - | 88,618 | - | 17,107 | 105,725 | |||||||||||||||||||||||||||
Currency
translation adjustment
|
- | - | - | - | - | - | 158,775 | 50 | 158,825 | |||||||||||||||||||||||||||
Obligation
to repurchase shares
|
- | - | - | - | - | - | (488 | ) | - | (488 | ) | |||||||||||||||||||||||||
BALANCE,
December
31, 2007
|
36,003,198 | $ | 2,880 | 6,312,839 | $ | 505 | $ | 1,051,336 | $ | 54,871 | $ | 290,215 | $ | 23,155 | $ | 1,422,962 | ||||||||||||||||||||
Stock-based
compensation
|
- | - | - | - | 7,133 | - | - | - | 7,133 | |||||||||||||||||||||||||||
Stock
options exercised
|
21,075 | 2 | - | - | 1,220 | - | - | - | 1,222 | |||||||||||||||||||||||||||
Purchase
and extinguishment of capped call options (Note
6)
|
- | - | - | - | (41,157 | ) | (22,161 | ) | - | - | (63,318 | ) | ||||||||||||||||||||||||
Acquisitions
of noncontrolling interests
|
- | - | - | - | - | - | - | (18,861 | ) | (18,861 | ) | |||||||||||||||||||||||||
Dividends
paid to holders of noncontrolling interests
|
- | - | - | - | - | - | - | (3,178 | ) | (3,178 | ) | |||||||||||||||||||||||||
Bifurcation
of equity option embedded in convertible notes
|
- | - | - | - | 108,085 | - | - | - | 108,085 | |||||||||||||||||||||||||||
Net
loss
|
- | - | - | - | - | (269,546 | ) | - | 2,067 | (267,479 | ) | |||||||||||||||||||||||||
Currency
translation adjustment
|
- | - | - | - | - | - | (88,613 | ) | 4 | (88,609 | ) | |||||||||||||||||||||||||
Obligation
to repurchase shares
|
- | - | - | - | - | - | 488 | - | 488 | |||||||||||||||||||||||||||
BALANCE,
December
31, 2008
|
36,024,273 | $ | 2,882 | 6,312,839 | $ | 505 | $ | 1,126,617 | $ | (236,836 | ) | $ | 202,090 | $ | 3,187 | $ | 1,098,445 |
CME
Ltd. Shareholders
|
||||||||||||||||||||||||||||||||||||
Class
A
Common
Stock
|
Class
B
Common
Stock
|
Additional
Paid-In Capital
|
Retained
Deficit
|
Accumulated
Other Comprehensive Income
|
Noncontrolling
Interests
|
Total
Equity
|
||||||||||||||||||||||||||||||
Number
of shares
|
Par
value
|
Number
of shares
|
Par
value
|
|||||||||||||||||||||||||||||||||
BALANCE,
December
31, 2008
|
36,024,273 | $ | 2,882 | 6,312,839 | $ | 505 | $ | 1,126,617 | $ | (236,836 | ) | $ | 202,090 | $ | 3,187 | $ | 1,098,445 | |||||||||||||||||||
Stock-based
compensation
|
- | - | - | - | 6,180 | - | - | - | 6,180 | |||||||||||||||||||||||||||
Acquisition
of noncontrolling interests
|
- | - | - | - | (24,090 | ) | - | - | 3,965 | (20,125 | ) | |||||||||||||||||||||||||
Shares
issued, net of fees
|
14,500,000 | 1,160 | 4,500,000 | 360 | 232,848 | - | - | - | 234,368 | |||||||||||||||||||||||||||
Shares
issued in connection with the acquisition of Media Pro Entertainment (Note
3)
|
2,200,000 | 176 | - | - | 55,264 | - | - | - | 55,440 | |||||||||||||||||||||||||||
Warrants
issued in connection with the acquisition of Media Pro Entertainment (Note
3)
|
- | - | - | - | 13,768 | - | - | - | 13,768 | |||||||||||||||||||||||||||
Conversion
of class B shares (Note 14)
|
3,321,903 | 266 | (3,321,903 | ) | (266 | ) | - | - | - | - | - | |||||||||||||||||||||||||
Dividends
paid to holders of noncontrolling interest
|
- | - | - | - | - | - | - | (1,825 | ) | (1,825 | ) | |||||||||||||||||||||||||
Net
loss
|
- | - | - | - | - | (97,157 | ) | - | (10,650 | ) | (107,807 | ) | ||||||||||||||||||||||||
Currency
translation adjustment
|
- | - | - | - | - | - | (106,178 | ) | (426 | ) | (106,604 | ) | ||||||||||||||||||||||||
BALANCE,
December
31, 2009
|
56,046,176 | $ | 4,484 | 7,490,936 | $ | 599 | $ | 1,410,587 | $ | (333,993 | ) | $ | 95,912 | $ | (5,749 | ) | $ | 1,171,840 |
Company
Name
|
Effective
Voting
Interest
|
Jurisdiction
of
Organization
|
Type
of Affiliate (1)
|
|||
Top
Tone Media S.A.
|
80.00 | % |
Luxembourg
|
Subsidiary
|
||
Zopal
S.A.
|
80.00 | % |
Luxembourg
|
Subsidiary
|
||
PRO
BG MEDIA EOOD
|
80.00 | % |
Bulgaria
|
Subsidiary
|
||
LG
Consult EOOD
|
80.00 | % |
Bulgaria
|
Subsidiary
|
||
Top
Tone Media Bulgaria EOOD
|
80.00 | % |
Bulgaria
|
Subsidiary
|
||
Ring
TV EAD
|
80.00 | % |
Bulgaria
|
Subsidiary
|
||
Nova
TV d.d.
|
100.00 | % |
Croatia
|
Subsidiary
|
||
Operativna
Kompanija d.o.o.
|
100.00 | % |
Croatia
|
Subsidiary
|
||
Media
House d.o.o.
|
100.00 | % |
Croatia
|
Subsidiary
|
||
Internet
Dnevnik d.o.o.
|
100.00 | % |
Croatia
|
Subsidiary
|
||
CET
21 spol. s r.o.
|
100.00 | % |
Czech
Republic
|
Subsidiary
|
||
Jyxo,
s.r.o.
|
100.00 | % |
Czech
Republic
|
Subsidiary
|
||
BLOG
Internet, s.r.o.
|
100.00 | % |
Czech
Republic
|
Subsidiary
|
||
Mediafax
s.r.o.
|
100.00 | % |
Czech
Republic
|
Subsidiary
|
||
Media
Pro International S.A.
|
95.00 | % |
Romania
|
Subsidiary
|
||
Media
Vision S.R.L.
|
95.00 | % |
Romania
|
Subsidiary
|
||
Pro
TV S.A.
|
95.05 | % |
Romania
|
Subsidiary
|
||
Sport
Radio TV Media S.R.L.
|
95.04 | % |
Romania
|
Subsidiary
|
||
Music
Television System S.R.L.
|
95.05 | % |
Romania
|
Subsidiary
|
||
Campus
Radio S.R.L.
|
19.01 | % |
Romania
|
Equity-Accounted
Affiliate
|
||
CME
Slovak Holdings B.V.
|
100.00 | % |
Netherlands
|
Subsidiary
|
||
A.R.J.,
a.s.
|
100.00 | % |
Slovak
Republic
|
Subsidiary
|
Company
Name
|
Effective
Voting
Interest
|
Jurisdiction
of
Organization
|
Type
of Affiliate (1)
|
|||
MARKÍZA-SLOVAKIA,
spol. s r.o.
|
100.00 | % |
Slovak
Republic
|
Subsidiary
|
||
GAMATEX,
spol. s r.o.
|
100.00 | % |
Slovak
Republic
|
Subsidiary
(in liquidation)
|
||
A.D.A.M.,
a.s.
|
100.00 | % |
Slovak
Republic
|
Subsidiary
(in liquidation)
|
||
MEDIA
INVEST, spol. s r.o.
|
100.00 | % |
Slovak
Republic
|
Subsidiary
|
||
EMAIL.SK
s.r.o.
|
80.00 | % |
Slovak
Republic
|
Subsidiary
|
||
PMT,
s.r.o.
|
31.50 | % |
Slovak
Republic
|
Cost
Investment
|
||
MMTV
1 d.o.o.
|
100.00 | % |
Slovenia
|
Subsidiary
|
||
Produkcija
Plus d.o.o.
|
100.00 | % |
Slovenia
|
Subsidiary
|
||
POP
TV d.o.o.
|
100.00 | % |
Slovenia
|
Subsidiary
|
||
Kanal
A d.o.o.
|
100.00 | % |
Slovenia
|
Subsidiary
|
||
Euro
3 TV d.o.o.
|
42.00 | % |
Slovenia
|
Equity-Accounted
Affiliate
|
||
TELEVIDEO
d.o.o. (trading as TV Pika)
|
100.00 | % |
Slovenia
|
Subsidiary
|
||
CME
Cyprus Holding II Ltd.
|
100.00 | % |
Cyprus
|
Subsidiary
|
||
TV
Media Planet Ltd.
|
100.00 | % |
Cyprus
|
Subsidiary
|
||
CME
Cyprus Holding Ltd.
|
100.00 | % |
Cyprus
|
Subsidiary
|
||
International
Media Services Ltd.
|
100.00 | % |
Bermuda
|
Subsidiary
|
||
CME
Ukraine Holding II B.V.
|
100.00 | % |
Netherlands
|
Subsidiary
|
||
Grizard
Investments Limited
|
100.00 | % |
Cyprus
|
Subsidiary
|
||
Grintwood
Investments Limited
|
100.00 | % |
Cyprus
|
Subsidiary
|
||
Innova
Film GmbH
|
100.00 | % |
Germany
|
Subsidiary
|
||
1+1
Production
|
100.00 | % |
Ukraine
|
Subsidiary
|
||
Studio
1+1 LLC
|
100.00 | % |
Ukraine
|
Subsidiary
|
||
Ukrainian
Media Services LLC
|
100.00 | % |
Ukraine
|
Subsidiary
|
||
Ukrpromtorg-2003
LLC
|
100.00 | % |
Ukraine
|
Subsidiary
|
||
Gravis-Kino
LLC
|
100.00 | % |
Ukraine
|
Subsidiary
|
||
TV
Stimul LLC
|
100.00 | % |
Ukraine
|
Subsidiary
|
||
TOR
LLC
|
100.00 | % |
Ukraine
|
Subsidiary
|
||
ZHYSA
LLC
|
100.00 | % |
Ukraine
|
Subsidiary
|
||
Glavred-Media
LLC
|
10.00 | % |
Ukraine
|
Cost
Investment
|
Company
Name
|
Effective
Voting
Interest
|
Jurisdiction
of
Organization
|
Type
of Affiliate (1)
|
|||
CME
Media Pro B.V.
|
100.00 | % |
Netherlands
|
Subsidiary
|
||
Media
Pro Pictures s.r.o.
|
100.00 | % |
Czech
Republic
|
Subsidiary
|
||
Zmĕna,
s.r.o.
|
51.00 | % |
Czech
Republic
|
Subsidiary
|
||
Taková
normální rodinka, s.r.o.
|
51.00 | % |
Czech
Republic
|
Subsidiary
|
||
Media
Pro Pictures S.A.
|
100.00 | % |
Romania
|
Subsidiary
|
||
Media
Pro Distribution S.R.L.
|
100.00 | % |
Romania
|
Subsidiary
|
||
Media
Pro Music and Entertainment S.R.L.
|
100.00 | % |
Romania
|
Subsidiary
|
||
Pro
Video S.R.L.
|
100.00 | % |
Romania
|
Subsidiary
|
||
Hollywood
Multiplex Operation S.R.L.
|
100.00 | % |
Romania
|
Subsidiary
|
||
Domino
Production S.R.L.
|
51.00 | % |
Romania
|
Subsidiary
|
||
Studiourile
Media Pro S.A.
|
92.20 | % |
Romania
|
Subsidiary
|
||
Promance
International S.R.L.
|
100.00 | % |
Romania
|
Subsidiary
|
||
Pro
Video Film and Distribution Kft
|
100.00 | % |
Hungary
|
Subsidiary
|
||
Central
European Media Enterprises N.V.
|
100.00 | % |
Netherlands
Antilles
|
Subsidiary
|
||
Central
European Media Enterprises II B.V.
|
100.00 | % |
Netherlands
Antilles
|
Subsidiary
|
||
CME
Media Enterprises B.V.
|
100.00 | % |
Netherlands
|
Subsidiary
|
||
CME
Investments B.V.
|
100.00 | % |
Netherlands
|
Subsidiary
|
||
CME
Programming B.V.
|
100.00 | % |
Netherlands
|
Subsidiary
|
||
CME
Ukraine Holding B.V.
|
100.00 | % |
Netherlands
|
Subsidiary
|
||
CME
Development Financing B.V.
|
100.00 | % |
Netherlands
|
Subsidiary
|
||
CME
Ukraine Holding GmbH
|
100.00 | % |
Austria
|
Subsidiary
|
||
CME
Development Corporation
|
100.00 | % |
Delaware
(USA)
|
Subsidiary
|
||
CME
Media Services Limited
|
100.00 | % |
United
Kingdom
|
Subsidiary
|
||
CME
SR d.o.o.
|
100.00 | % |
Serbia
|
Subsidiary
|
Asset
category
|
Estimated
useful life
|
Land
|
Indefinite
|
Buildings
|
25
years
|
Station
machinery, fixtures and equipment
|
4 -
8 years
|
Other
equipment
|
3 –
8 years
|
Software
licenses
|
3 –
5 years
|
Amortization
%
|
||||||||||||||||||||
Type
of programming
|
Run
1
|
Run
2
|
Run
3
|
Run
4
|
Run
5
|
|||||||||||||||
Special
blockbuster
|
30 | % | 25 | % | 20 | % | 15 | % | 10 | % | ||||||||||
Films
and series, 2 runs
|
65 | % | 35 | % | - | - | - | |||||||||||||
Films
and series, 3 runs
|
60 | % | 30 | % | 10 | % | - | - | ||||||||||||
Long-run
series, Ukraine
|
85 | % | 15 | % | - | - | - | |||||||||||||
Concerts,
documentaries, sports events, etc.
|
100 | % | - | - | - | - |
·
|
we
intend to renew the licenses into the foreseeable
future;
|
·
|
we
have precedents of renewals or reasonable expectation of
renewals;
|
·
|
we
do not expect any substantial cost to be incurred as part of a future
license renewal and no costs have been incurred in the renewals to date;
and
|
·
|
we
have not experienced any historical evidence of a compelling challenge to
our holding these licenses.
|
For
the Year Ended
December
31, 2009
|
||||
Net
income / (loss) attributable to CME Ltd. as reported
|
$ | (97,157 | ) | |
Deduct:
noncontrolling interest in income recognized since the adoption of FAS 160
(ASC 810)
|
(10,910 | ) | ||
Pro
Forma net income / (loss)
|
$ | (108,067 | ) | |
Net
loss per share – Basic (As reported)
|
$ | (1.79 | ) | |
Net
loss per share – Basic (Pro Forma)
|
$ | (1.99 | ) | |
Net
loss per share – Diluted (As reported)
|
$ | (1.79 | ) | |
Net
loss per share – Diluted (Pro Forma)
|
$ | (1.99 | ) |
Impact
of adopting
|
||||||||||||||||
|
As
reported
|
FSP
APB 14-1 (ASC 470)
|
FAS
160 (ASC 810)
|
As
Adjusted
|
||||||||||||
Consolidated
Statement of
Operations
|
|
|||||||||||||||
For
the Year ended December 31, 2008
|
||||||||||||||||
Interest
expense
|
$ | (68,475 | ) | $ | (14,006 | ) | $ | - | $ | (82,481 | ) | |||||
Noncontrolling
interest in income of consolidated subsidiaries (1)
|
(2,071 | ) | - | 4 | (2,067 | ) | ||||||||||
Net
(loss) / income
|
$ | (255,544 | ) | $ | (14,006 | ) | $ | 4 | $ | (269,546 | ) | |||||
Net
loss per share
|
||||||||||||||||
Net
loss (Basic)
|
$ | (6.04 | ) | $ | (0.33 | ) | $ | 0.00 | $ | (6.37 | ) | |||||
Net
loss (Diluted)
|
$ | (6.04 | ) | $ | (0.33 | ) | $ | 0.00 | $ | (6.37 | ) |
Market
Price
|
$ |
25.20
|
||
Exercise
Price
|
$ |
21.75
|
||
Expected
Term
|
6
years
|
|||
Volatility
|
67.8 | % | ||
Dividend
Rate
|
0 | % | ||
Risk
Free Rate
|
1.67 | % | ||
Warrant
value
|
$ | 16.198 | ||
Total
Value
|
$ | 13,768 |
Fair
Value on Date of
Acquisition
(in
US$’000’s)
|
||||
Cash
and cash equivalents
|
$ | 6,638 | ||
Property,
plant and equipment
|
79,588 | |||
Program
rights
|
17,802 | |||
Trademarks
|
7,254 | |||
Other
intangible assets subject to amortization (1)
|
4,992 | |||
Deferred
tax assets
|
11,960 | |||
Deferred
tax liabilities
|
(18,812 | ) | ||
Other
net liabilities
|
(53,933 | ) | ||
Noncontrolling
interest
|
(4,067 | ) | ||
Goodwill
(2)
|
47,023 | |||
Total
purchase price
|
$ | 98,445 |
Fair
Value on Acquisition
(in
US$’000’s)
|
||||
Property,
plant and equipment
|
$ | 2,561 | ||
Intangible
assets not subject to amortization (1)
|
15,892 | |||
Goodwill
(2)
|
2,394 | |||
Total
purchase price (3)
|
$ | 20,847 |
Bulgaria
|
Croatia
|
Czech
Republic
|
Romania
|
Slovak
Republic
|
Slovenia
|
Ukraine
|
TOTAL
|
|||||||||||||||||||||||||
Gross
balance, Dec 31, 2007
|
$ | - | $ | 11,227 | $ | 951,286 | $ | 74,667 | $ | 57,635 | $ | 18,393 | $ | 11,593 | $ | 1,124,801 | ||||||||||||||||
Accumulated
impairment losses
|
- | (10,454 | ) | - | - | - | - | - | (10,454 | ) | ||||||||||||||||||||||
Net
balance, Dec 31, 2007
|
- | 773 | 951,286 | 74,667 | 57,635 | $ | 18,393 | $ | 11,593 | 1,114,347 | ||||||||||||||||||||||
Additions
|
74,137 | - | - | 2,394 | - | - | 251,209 | 327,740 | ||||||||||||||||||||||||
Allocation/Adjustment
|
- | - | - | (525 | ) | - | - | (59 | ) | (584 | ) | |||||||||||||||||||||
Impairment
charge
|
(64,044 | ) | - | - | - | - | - | (262,743 | ) | (326,787 | ) | |||||||||||||||||||||
Foreign
currency movement
|
(10,093 | ) | (34 | ) | (62,350 | ) | (4,200 | ) | 4,007 | (1,005 | ) | - | 73,675 | |||||||||||||||||||
Net
balance, Dec 31, 2008
|
$ | - | $ | 739 | $ | 888,936 | $ | 72,336 | $ | 61,642 | $ | 17,388 | $ | - | $ | 1,041,041 | ||||||||||||||||
Gross
balance, Dec 31, 2008
|
64,044 | 11,193 | 888,936 | 72,336 | 61,642 | 17,388 | 262,743 | $ | 1,378,282 | |||||||||||||||||||||||
Accumulated
impairment losses
|
(64,044 | ) | (10,454 | ) | - | - | - | - | (262,743 | ) | (337,241 | ) |
Bulgaria
|
Croatia
|
Czech
Republic
|
Romania
|
Slovak
Republic
|
Slovenia
|
Ukraine
|
Media
Pro Entertainment (1)
|
TOTAL
|
||||||||||||||||||||||||||||
Gross
balance, Dec 31, 2008
|
$ | 64,044 | $ | 11,193 | $ | 888,936 | $ | 72,336 | $ | 61,642 | $ | 17,388 | $ | 262,743 | $ | - | $ | 1,378,282 | ||||||||||||||||||
Accumulated
impairment losses
|
(64,044 | ) | (10,454 | ) | - | - | - | - | (262,743 | ) | - | (337,241 | ) | |||||||||||||||||||||||
Net
balance, Dec 31, 2008
|
$ | - | $ | 739 | $ | 888,936 | $ | 72,336 | $ | 61,642 | $ | 17,388 | $ | - | $ | - | $ | 1,041,041 | ||||||||||||||||||
Additions
|
- | - | - | - | - | 2,439 | - | 47,023 | $ | 49,462 | ||||||||||||||||||||||||||
Allocation/Adjustment
|
- | - | - | - | - | - | - | - | - | |||||||||||||||||||||||||||
Impairment
charge
|
- | - | - | - | - | - | - | - | $ | - | ||||||||||||||||||||||||||
Foreign
currency movement
|
- | 18 | 47,332 | (2,511 | ) | 1,348 | 571 | - | (988 | ) | $ | 45,770 | ||||||||||||||||||||||||
Net
balance, Dec 31, 2009
|
- | $ | 757 | 936,268 | 69,825 | 62,990 | 20,398 | - | 46,035 | $ | 1,136,273 | |||||||||||||||||||||||||
Gross
balance, Dec 31, 2009
|
$ | 64,044 | 11,211 | 936,268 | 69,825 | 62,990 | 20,398 | 262,743 | 46,035 | 1,473,514 | ||||||||||||||||||||||||||
Accumulated
impairment losses
|
(64,044 | ) | (10,454 | ) | - | - | - | - | (262,743 | ) | - | (337,241 | ) |
Net
balance, Dec 31, 2008
|
Additions
|
Foreign
currency movement
|
Net
balance, Dec 31, 2009
|
|||||||||||||
Fiction
|
$ | - | $ | 18,935 | $ | (398 | ) | $ | 18,537 | |||||||
Production
services
|
- | 10,164 | (214 | ) | 9,950 | |||||||||||
Distribution
and Exhibition
|
- |
17,924
|
(376 | ) |
17,548
|
|||||||||||
TOTAL
MPE
|
$ | - | $ |
47,023
|
$ | (988 | ) | $ |
46,035
|
Indefinite-Lived
Broadcast Licenses
|
Amortized
Broadcast Licenses
|
Trademarks
|
Customer
Relationships
|
Other
|
Total
|
|||||||||||||||||||
Balance,
December 31, 2007
|
$ | 50,748 | $ | 187,178 | $ | 60,084 | $ | 73,267 | $ | 2,145 | $ | 373,422 | ||||||||||||
Reallocation
(1)
|
- | - | - | - | 624 | 624 | ||||||||||||||||||
Additions
|
14,177 | 139,235 | 50,198 | 598 | 7,473 | 211,681 | ||||||||||||||||||
Impairment
|
- | (637 | ) | (8,703 | ) | - | (625 | ) | (9,965 | ) | ||||||||||||||
Amortization
|
- | (25,088 | ) | (1,054 | ) | (8,155 | ) | (1,084 | ) | (35,381 | ) | |||||||||||||
Foreign
currency movements
|
(5,069 | ) | (18,630 | ) | (3,478 | ) | 2,570 | (1,042 | ) | (25,649 | ) | |||||||||||||
Balance,
December 31, 2008
|
$ | 59,856 | $ | 282,058 | $ | 97,047 | $ | 68,280 | $ | 7,491 | $ | 514,732 | ||||||||||||
Additions
|
- | - | 7,543 | - | 4,992 | 12,535 | ||||||||||||||||||
Impairment
|
- | (75,788 | ) | (76 | ) | - | (4,882 | ) | (80,746 | ) | ||||||||||||||
Amortization
|
- | (13,057 | ) | (501 | ) | (7,246 | ) | (793 | ) | (21,597 | ) | |||||||||||||
Foreign
currency movements
|
(1,350 | ) | (14,637 | ) | (10,655 | ) | 650 | (514 | ) | (26,506 | ) | |||||||||||||
Balance,
December 31, 2009
|
$ | 58,506 | $ | 178,576 | $ | 93,358 | $ | 61,684 | $ | 6,294 | $ | 398,418 |
December
31, 2009
|
December
31, 2008
|
|||||||
Gross
value
|
$ | 454,377 | $ | 549,140 | ||||
Accumulated
amortization
|
(114,465 | ) | (94,264 | ) | ||||
Net
book value of amortized intangible assets
|
$ | 339,912 | $ | 454,876 | ||||
Indefinite-lived
broadcast licenses
|
58,506 | 59,856 | ||||||
Total
broadcast licenses and other intangible assets, net
|
$ | 398,418 | $ | 514,732 |
2010
|
$ | 26,346 | ||
2011
|
29,159 | |||
2012
|
28,557 | |||
2013
|
28,509 | |||
2014
|
28,773 |
Amortized
Trademarks
|
Amortized
Broadcast Licenses
|
Other
Intangible Assets
|
Other
Assets
|
Total
|
||||||||||||||||
Bulgaria
|
$ | 76 | $ | 75,788 | $ | 4,882 | $ | 1,097 | $ | 81,843 |
Long-Lived
Assets
|
Goodwill
and Indefinite-Lived Intangible Assets
|
|||||||||||||||||||||||
Amortized
Trademarks
|
Amortized
Broadcast Licenses
|
Other
Intangible Assets
|
Indefinite-Lived
Trademarks
|
Goodwill
|
Total
|
|||||||||||||||||||
Bulgaria
|
$ | 222 | $ | - | $ | 625 | $ | - | $ | 64,044 | $ | 64,891 | ||||||||||||
Ukraine
|
- | 637 | - | 8,481 | 262,743 | 271,861 | ||||||||||||||||||
Total
|
$ | 222 | $ | 637 | $ | 625 | $ | 8,481 | $ | 326,787 | $ | 336,752 |
|
·
|
under-performance
of operating segments or changes in projected
results;
|
|
·
|
changes
in the manner of utilization of an
asset;
|
|
·
|
severe
and sustained declines in the traded price of our Class A common stock
that are not attributable to factors other than the underlying value of
our assets;
|
|
·
|
negative
market conditions or economic trends;
and
|
|
·
|
specific
events, such as new legislation, new entrants, changes in technology or
adverse legal judgments that we believe could have a negative impact on
our business.
|
Measurement
|
Valuation
Method
|
|
Recoverability
of cash flows
|
Undiscounted
future cash flows
|
|
Fair
value of broadcast licenses
|
Build-out
method
|
|
Fair
value of trademarks
|
Relief
from royalty method
|
|
Fair
value of reporting units
|
Discounted
cash flow model
|
|
·
|
Cost of capital:
The
cost of capital reflects the return a hypothetical market participant
would require for a long-term investment in an asset and can be viewed as
a proxy for the risk of that asset. We calculate the cost of capital
according to the Capital Asset Pricing Model using a number of
assumptions, the most significant of which is a Country Risk Premium
(“CRP”). The CRP reflects the excess risk to an investor of investing in
markets other than the United States and generally fluctuates with
expectations of changes in a country’s macro economic environment. The
costs of capital that we have applied in all reporting units since the end
of 2008 have been very high compared to historic levels, which we believe
represents a fundamental re-pricing of the perceived risk of investing in
emerging markets. We observed a reduction in costs of capital between the
first quarter impairment review and the second quarter impairment review
in response to reductions in the CRP, which have decreased across emerging
market economies due to a narrowing of the relative spread between yields
on developed and emerging market debt, as the risk differential between
these is perceived by market participants to have diminished. There was a
negligible change in the cost of capital used between the second quarter
impairment review and fourth quarter annual impairment
review.
|
|
·
|
Growth rate into perpetuity:
reflects the level of economic growth in each of our markets from
the last forecasted period into perpetuity and is the sum of an estimated
real growth rate, which reflects our belief that macro economic growth in
our markets will eventually converge to western European markets, and long
term expectations for inflation. Our estimates of these rates are based on
observable market data and have not
changed.
|
|
·
|
Total advertising market:
The size of the television advertising market effectively places an
upper limit on the advertising revenue we can expect to earn in each
country. Our estimate of the total advertising market is developed from a
number of external sources, in combination with a process of on-going
consultation with local management. In our second quarter impairment
review, we reduced our forecast of the absolute size of the television
advertising markets compared to the first quarter impairment review. In
our annual impairment review performed in the fourth quarter, we
marginally increased our size of the television advertising markets based
on our expectation of higher growth rates as the markets begin to
recover.
|
|
·
|
Market share:
This is a
function of the audience share we expect our stations to generate, and the
relative price at which we can sell advertising. Our estimate of the total
advertising market is developed from a number of external sources, in
combination with a process of on-going consultation with local management.
In general, in the second quarter impairment review we forecast that our
levels of market share will be comparable to, or slightly higher than we
assumed in the first quarter impairment review to reflect recent
improvements in our audience share. In our annual impairment review, we
forecast our market share to be lower than our assumptions in the second
quarter as a result of increased
competition.
|
·
|
Forecast operating
costs:
The level of cash flow generated by each operation is
ultimately governed by the extent to which we manage the relationship
between revenues and costs. We forecast the level of operating costs by
reference to (a) the historical absolute and relative levels of costs we
have incurred in generating revenue in each station, (b) the operating
strategy of each business and (c) specific forecast costs to be incurred.
With the exception of the Czech Republic, where costs were reduced, in the
second quarter impairment review we forecast that operating costs will be
comparable or slightly higher in comparison with our assumptions in the
first quarter impairment review, to reflect the increased EBITDA margins
we had experienced in some operations compared to previous forecasts as we
have reduced costs. In the annual impairment review, we forecast our
operating costs to be comparable, or slightly lower in comparison with our
second quarter assumptions to reflect further cost reductions we
initiated.
|
|
·
|
Forecast capital
expenditure:
The size and phasing of capital expenditure, both
recurring expenditure to replace retired assets and investments in new
projects, has a significant impact on cash flows. We forecast the level of
future capital expenditure based on current strategies and specific
forecast costs to be incurred. In line with our ongoing efforts to protect
our operating margins, the absolute levels of capital expenditure forecast
remained broadly constant between the first, second and fourth quarter
impairment reviews, however certain investment cash flows were delayed,
with a consequent marginal positive impact on the fair value of the
reporting units.
|
|
·
|
a
continued reduction in the short and medium economic projections for our
markets by external analysts fuelled by a widespread perception that
Central and Eastern Europe had been heavily impacted by the global
economic crisis and growing sentiment that recovery would take longer than
expected;
|
|
·
|
increasing
reluctance of advertisers to make spending commitments, which had a larger
than expected impact on both the proportion of our advertising inventory
we could sell and a reduction in the prices we could
achieve;
|
|
·
|
continued
significant volatility in the price of shares of our Class A common stock,
particularly during the first quarter of
2009;
|
|
·
|
historically
high sovereign debt yields in our markets, suggesting a fundamental
re-pricing of risk by investors;
and
|
|
·
|
an
escalation of the economic crisis in Ukraine, including the downgrading of
its sovereign credit rating to CCC+ by Standard &
Poors.
|
Carrying
value
|
|||||||||||||
Type
of Affiliate
|
Effective Voting
interest
|
December
31, 2009
|
December
31, 2008
|
||||||||||
Media
Pro Management S.A.
|
Cost
Method Investment
|
8.7 | % | - | 16,559 | ||||||||
$ - | $ 16,559 |
Carrying
Value
|
Fair
Value
|
|||||||||||||||
December
31, 2009
|
December
31, 2008
|
December
31, 2009
|
December
31, 2008
|
|||||||||||||
EUR
440.0 million 11.625% Senior Notes
|
$ | 639,515 | $ | - | $ | 608,510 | $ | - | ||||||||
EUR
245.0 million 8.25% Senior Notes
|
- | 340,966 | - | 233,562 | ||||||||||||
EUR
150.0 million Floating Rate Senior Notes
|
216,090 | 208,755 | 153,424 | 125,253 | ||||||||||||
USD
475.0 million 3.50% Senior Convertible Notes
|
398,323 | 378,804 | 369,883 | 230,375 | ||||||||||||
$ | 1,253,928 | $ | 928,525 | $ | 1,131,816 | $ | 589,190 |
From:
|
Fixed
Rate Notes
Redemption
Price
|
|||
September
15, 2013 to September 14, 2014
|
105.813 | % | ||
September
15, 2014 to September 14, 2015
|
102.906 | % | ||
September
15, 2015 and thereafter
|
100.000 | % |
Stock
price
|
Shares
issued on conversion of Convertible Notes
|
Shares
received on exercise of capped call options
|
Net
shares issued
|
Value
of shares issued (US$ ‘000)
|
||||||||||||
$105.00
and below
|
- | - | - | $ | - | |||||||||||
110.00
|
(205,628 | ) | 133,658 | (71,970 | ) | (7,917 | ) | |||||||||
120.00
|
(565,476 | ) | 367,559 | (197,917 | ) | (23,750 | ) | |||||||||
130.00
|
(869,963 | ) | 565,475 | (304,488 | ) | (39,583 | ) | |||||||||
140.00
|
(1,130,951 | ) | 735,118 | (395,833 | ) | (55,417 | ) | |||||||||
151.20
|
(1,382,274 | ) | 898,478 | (483,796 | ) | (73,150 | ) | |||||||||
$
200.00
|
(2,148,807 | ) | 679,248 | (1,469,559 | ) | $ | (293,912 | ) |
US$’000
|
Principal
amount of liability component
|
Unamortized
discount
|
Net
carrying value
|
Equity
Component
|
||||||||||||
As
at December 31, 2007
|
$ | (475,000 | ) | $ | 110,752 | $ | (364,248 | ) | $ | 110,752 | ||||||
Amortization
of debt issuance discount
|
- | (14,556 | ) | (14,556 | ) | - | ||||||||||
As
at December 31, 2008
|
$ | (475,000 | ) | $ | 96,196 | $ | (378,804 | ) | $ | 110,752 | ||||||
Amortization
of debt issuance discount
|
- | (19,519 | ) | (19,519 | ) | - | ||||||||||
As
at December 31, 2009
|
$ | (475,000 | ) | $ | 76,677 | $ | (398,323 | ) | $ | 110,752 |
December
31, 2009
|
December
31, 2008
|
|||||||
Third-party
customers
|
$ | 203,226 | $ | 227,253 | ||||
Less
allowance for bad debts and credit notes
|
(17,667 | ) | (14,663 | ) | ||||
Related
parties
|
2,311 | 8,913 | ||||||
Less
allowance for bad debts and credit notes
|
(892 | ) | (53 | ) | ||||
Total
accounts receivable
|
$ | 186,978 | $ | 221,450 |
December
31, 2009
|
December
31, 2008
|
|||||||
Current:
|
||||||||
Prepaid
programming
|
$ | 48,145 | $ | 54,301 | ||||
Productions
in progress
|
13,635 | 14,080 | ||||||
Other
prepaid expenses
|
9,567 | 7,286 | ||||||
Income
taxes recoverable
|
7,685 | 1,216 | ||||||
Deferred
tax
|
7,084 | 5,898 | ||||||
VAT
recoverable
|
6,749 | 3,460 | ||||||
Capitalized
debt costs
|
5,591 | 4,636 | ||||||
Assets
held for sale
|
- | 5,484 | ||||||
Inventory
|
1,555 | - | ||||||
Restricted
Cash
|
1,046 | 821 | ||||||
Other
|
1,234 | 904 | ||||||
Total
other current assets
|
$ | 102,291 | $ | 98,086 | ||||
December
31, 2009
|
December
31, 2008
|
|||||||
Non-current:
|
||||||||
Capitalized
debt costs
|
$ | 22,816 | $ | 13,282 | ||||
Deferred
tax
|
11,281 | 2,108 | ||||||
Productions
in progress
|
7,737 | - | ||||||
Other
|
2,983 | 3,875 | ||||||
Total
other non-current assets
|
$ | 44,817 | $ | 19,265 |
December
31, 2009
|
December
31, 2008
|
|||||||
Land
and buildings
|
$ | 170,211 | $ | 92,421 | ||||
Station
machinery, fixtures and equipment
|
218,642 | 190,090 | ||||||
Other
equipment
|
36,272 | 35,470 | ||||||
Software
licenses
|
37,500 | 30,219 | ||||||
Construction
in progress
|
13,215 | 11,293 | ||||||
Total
cost
|
$ | 475,840 | $ | 359,493 | ||||
Less: Accumulated
depreciation
|
(196,404 | ) | (152,826 | ) | ||||
Total
net book value
|
$ | 279,436 | $ | 206,667 | ||||
Assets
held under capital leases (included in the above)
|
||||||||
Land
and buildings
|
$ | 6,079 | $ | 5,855 | ||||
Station
machinery, fixtures and equipment
|
3,927 | 1,917 | ||||||
Total
cost
|
$ | 10,006 | $ | 7,772 | ||||
Less: Accumulated
depreciation
|
(2,180 | ) | (1,644 | ) | ||||
Net
book value
|
$ | 7,826 | $ | 6,128 |
December
31, 2009
|
December
31, 2008
|
|
Accounts
payable
|
$
43,218
|
$ 35,778
|
Programming
liabilities
|
65,158
|
44,251
|
Duties
and other taxes payable
|
20,868
|
22,635
|
Accrued
staff costs
|
18,736
|
27,318
|
Accrued
interest payable
|
26,686
|
10,531
|
Income
taxes payable
|
3,909
|
7,399
|
Accrued
production costs
|
7,523
|
6,531
|
Accrued
legal contingencies
|
2,729
|
5,728
|
Accrued
legal and professional fees
|
964
|
430
|
Authors’
rights
|
4,751
|
4,734
|
Other
accrued liabilities
|
19,157
|
9,550
|
Total
accounts payable and accrued liabilities
|
$
213,699
|
$ 174,885
|
December
31, 2009
|
December
31, 2008
|
||||||||
Credit
facilities:
|
|||||||||
Corporate
|
(a)
– (b)
|
$ | - | $ | 57,180 | ||||
Czech
Republic
|
(c)
– (f)
|
78,942 | 12,923 | ||||||
Romania
|
(g)
|
- | 104 | ||||||
Slovak
Republic
|
(h)
|
- | - | ||||||
Slovenia
|
(i)
|
37,675 | - | ||||||
Ukraine
|
(j)
|
- | 172 | ||||||
Media
Pro Entertainment (1)
|
(k)
|
1,374 | - | ||||||
Total
credit facilities
|
$ | 117,991 | $ | 70,379 | |||||
Capital
leases:
|
|||||||||
Bulgaria
operations, net of interest
|
$ | 674 | $ | 689 | |||||
Romania
operations, net of interest
|
49 | 289 | |||||||
Slovak
Republic operations, net of interest
|
- | 36 | |||||||
Slovenia
operations, net of interest
|
3,490 | 3,867 | |||||||
Media
Pro Entertainment operations, net of interest (1)
|
1,736 | - | |||||||
Total
capital leases
|
$ | 5,949 | $ | 4,881 | |||||
Total
credit facilities and capital leases
|
$ | 123,940 | $ | 75,260 | |||||
Less
current maturities
|
(117,910 | ) | (36,502 | ) | |||||
Total
non-current maturities
|
$ | 6,030 | $ | 38,758 |
Net
Deposits
|
Net
Drawings
|
|||||||
Corporate
|
$ | 7,237 | $ | - | ||||
Czech
Republic
|
38 | - | ||||||
Slovakia
|
3,299 | - | ||||||
Slovenia
|
- | 5,234 | ||||||
Ukraine
|
297 | - | ||||||
Total
|
$ | 10,871 | $ | 5,234 |
2010
|
$ | 116,630 | ||
2011
|
109 | |||
2012
|
- | |||
2013
|
398,323 | |||
2014
|
216,329 | |||
2015
and thereafter
|
640,528 | |||
Total
|
$ | 1,371,919 |
2010
|
$ | 1,465 | ||
2011
|
1,549 | |||
2012
|
774 | |||
2013
|
534 | |||
2014
|
2,479 | |||
2015
and thereafter
|
- | |||
$ | 6,801 | |||
Less:
amount representing interest
|
(852 | ) | ||
Present
value of net minimum lease payments
|
$ | 5,949 |
December
31, 2009
|
December
31, 2008
|
|||||||
Current:
|
||||||||
Deferred
revenue
|
$ | 13,031 | $ | 7,684 | ||||
Consideration
payable – Bulgaria
|
- | 4,500 | ||||||
Consideration
payable – Czech Republic
|
1,470 | - | ||||||
Consideration
payable - Romania
|
- | 724 | ||||||
Consideration
payable - Slovenia
|
144 | - | ||||||
Onerous
contracts
|
- | 1,994 | ||||||
Deferred
tax
|
3,327 | 177 | ||||||
Liabilities
held for sale
|
- | 2,207 | ||||||
Other
|
142 | - | ||||||
Total
other current liabilities
|
$ | 18,114 | $ | 17,286 | ||||
December
31, 2009
|
December
31, 2008
|
|||||||
Non-current:
|
||||||||
Deferred
tax
|
$ | 75,110 | $ | 89,126 | ||||
Program
rights
|
6,876 | 9,922 | ||||||
Fair
value of derivatives
|
8,567 | 9,882 | ||||||
Consideration
payable – Czech Republic
|
- | 1,396 | ||||||
Income
taxes payable
|
507 | 1,070 | ||||||
Other
|
206 | 819 | ||||||
Total
other non-current liabilities
|
$ | 91,266 | $ | 112,215 |
Level
1
|
Unadjusted
quoted prices in active markets that are accessible at the measurement
date for identical, unrestricted
instruments.
|
Level
2
|
Quoted
prices in markets that are not considered to be active or financial
instruments for which all significant inputs are observable, either
directly or indirectly.
|
Level
3
|
Prices
or valuations that require inputs that are both significant to the fair
value measurement and unobservable.
|
For
the Years Ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Domestic
|
$ | 130,185 | $ | (15,795 | ) | $ | (102,532 | ) | ||||
Foreign
|
(240,923 | ) | (213,374 | ) | 233,559 | |||||||
$ | (110,738 | ) | $ | (229,169 | ) | $ | 131,027 |
For
the Years Ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Income
tax (benefit) / expense from continuing operations
|
$ | (3,193 | ) | $ | 34,525 | $ | 20,822 | |||||
Income
tax (benefit) / expense from discontinued operations
|
(3 | ) | (64 | ) | (29 | ) | ||||||
Currency
translation adjustment in accumulated other comprehensive
income
|
- | - | 20,202 | |||||||||
Total
tax (benefit) / expense
|
$ | (3,196 | ) | $ | 34,461 | $ | 40,995 |
For
the Years Ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Current
income tax expense:
|
||||||||||||
Domestic
|
$ | 371 | $ | 253 | $ | (20,046 | ) | |||||
Foreign
|
19,003 | 49,431 | 51,806 | |||||||||
$ | 19,374 | $ | 49,684 | $ | 31,760 | |||||||
Deferred
tax (benefit )/expense:
|
||||||||||||
Domestic
|
$ | (2 | ) | $ | 21 | $ | - | |||||
Foreign
|
(22,565 | ) | (15,180 | ) | (10,938 | ) | ||||||
$ | (22,567 | ) | $ | (15,159 | ) | $ | (10,938 | ) | ||||
(Benefit)
/ provision for income taxes
|
$ | (3,193 | ) | $ | 34,525 | $ | 20,822 |
For
the Years Ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Income
taxes at Netherlands rates (25.5%)
|
$ | (28,218 | ) | $ | (58,416 | ) | $ | 33,409 | ||||
Jurisdictional
differences in tax rates
|
25,530 | 4,276 | (15,971 | ) | ||||||||
Tax
effect of goodwill impairment
|
- | 73,092 | - | |||||||||
Unrecognized
tax benefits
|
12,310 | 2,634 | (2,367 | ) | ||||||||
Interest
expense disallowed
|
- | 1,150 | 4,347 | |||||||||
Tax
effect of other permanent differences
|
(655 | ) | 6,724 | 2,597 | ||||||||
Effect
of changes in tax rates
|
- | 9 | (9,271 | ) | ||||||||
Change
in valuation allowance
|
(11,350 | ) | 7,192 | 9,803 | ||||||||
Other
|
(810 | ) | (2,136 | ) | (1,725 | ) | ||||||
Provision
for income taxes
|
$ | (3,193 | ) | $ | 34,525 | $ | 20,822 |
December
31, 2009
|
December
31, 2008
|
|||||||
Assets:
|
||||||||
Tax
benefit of loss carry-forwards and other tax credits
|
$ | 71,788 | $ | 48,384 | ||||
Programming
rights
|
19,366 | 3,119 | ||||||
Property,
plant and equipment
|
1,884 | 1,899 | ||||||
Accrued
expense
|
7,406 | 4,613 | ||||||
Other
|
8,352 | 4,684 | ||||||
Gross
deferred tax assets
|
108,796 | 62,699 | ||||||
Valuation
allowance
|
(65,711 | ) | (47,392 | ) | ||||
Net
deferred tax assets
|
43,085 | 15,307 | ||||||
Liabilities:
|
||||||||
Broadcast
licenses, trademarks and customer relationships
|
$ | (69,193 | ) | $ | (86,670 | ) | ||
Property,
plant and equipment
|
(14,984 | ) | (6,219 | ) | ||||
Programming
rights
|
(8,308 | ) | (478 | ) | ||||
Temporary
difference due to timing
|
(10,672 | ) | (3,236 | ) | ||||
Total
deferred tax liabilities
|
$ | (103,157 | ) | $ | (96,603 | ) | ||
Net
deferred income tax liability
|
$ | (60,072 | ) | $ | (81,296 | ) |
December
31, 2009
|
December
31, 2008
|
|||||||
Net
current deferred tax assets
|
$ | 7,084 | $ | 5,898 | ||||
Net
non-current deferred tax assets
|
11,281 | 2,109 | ||||||
18,365 | 8,007 | |||||||
Net
current deferred tax liabilities
|
(3,327 | ) | (177 | ) | ||||
Net
non-current deferred tax liabilities
|
(75,110 | ) | (89,126 | ) | ||||
$ | (78,437 | ) | $ | (89,303 | ) | |||
Net
deferred income tax liability
|
$ | (60,072 | ) | $ | (81,296 | ) |
Balance
at December 31, 2008
|
$ | 47,392 | ||
Credit
to costs and expenses
|
(11,350 | ) | ||
Companies
acquired
|
4,384 | |||
Charged
to Currency Translation Adjustment
|
25,378 | |||
Foreign
exchange
|
(93 | ) | ||
Balance
at December 31, 2009
|
$ | 65,711 |
Year
|
2010
|
2011
|
2012
|
2013
|
2014 - 27 |
Indefinite
|
||||||||||||||||||
Austria
|
- | - | - | - | - | 12,912 | ||||||||||||||||||
Bulgaria
|
- | - | 8,841 | 10,976 | 24,879 | - | ||||||||||||||||||
Croatia
|
373 | 9,556 | 26,503 | 14,908 | 12,842 | - | ||||||||||||||||||
Cyprus
|
- | - | - | - | - | 2,113 | ||||||||||||||||||
Czech
Republic
|
3,059 | 31 | 55 | 3,065 | 800 | - | ||||||||||||||||||
Netherlands
|
- | - | - | 5,411 | 114,163 | - | ||||||||||||||||||
Romania
|
100 | 2,391 | 7,776 | 9,348 | 3,589 | - | ||||||||||||||||||
Slovenia
|
- | - | - | - | - | 12,438 | ||||||||||||||||||
Ukraine
|
- | - | - | - | - | 52,015 | ||||||||||||||||||
United
Kingdom
|
- | - | - | - | - | 4,768 | ||||||||||||||||||
United
States
|
- | - | - | - | 7,031 | - | ||||||||||||||||||
Total
|
3,532 | 11,978 | 43,175 | 43,708 | 163,304 | 84,246 |
Balance
at January 1, 2007
|
$ | 3,575 | ||
Decreases
for tax positions taken during a prior period
|
(1,279 | ) | ||
Increases
for tax positions taken during the current period
|
34 | |||
Decreases
resulting from the expiry of the statute of limitations
|
(1,122 | ) | ||
Other
|
515 | |||
Balance
at December 31, 2007
|
$ | 1,723 | ||
Increases
for tax positions taken during a prior period
|
1,130 | |||
Increases
for tax positions taken during the current period
|
1,999 | |||
Decreases
resulting from the expiry of the statute of limitations
|
(495 | ) | ||
Other
|
(54 | ) | ||
Balance
at December 31, 2008
|
$ | 4,303 | ||
Increases
for tax positions taken during a prior period
|
95 | |||
Increases
for tax positions taken during the current period
|
12,843 | |||
Decreases
resulting from the expiry of the statute of limitations
|
(628 | ) | ||
Other
|
23 | |||
Balance
at December 31, 2009
|
$ | 16,636 |
Country
|
Year
|
|
Bulgaria
|
2002
|
|
Croatia
|
2005
|
|
Czech
Republic
|
2006
|
|
Germany
|
2005
|
|
Netherlands
|
2007
|
|
Romania
|
2005
|
|
Slovak
Republic
|
2004
|
|
Slovenia
|
2004
|
|
Ukraine
|
2004
|
|
United
States
|
2001
|
|
United
Kingdom
|
2008
|
For
the Year Ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Interest
on Senior Notes
|
$ | 52,478 | $ | 43,962 | $ | 41,549 | ||||||
Interest
on Convertible Notes
|
16,625 | 13,439 | - | |||||||||
Interest
on EBRD Loan
|
3,921 | 1,384 | 1,118 | |||||||||
Loss
on redemption of senior notes
|
9,415 | - | 3,380 | |||||||||
Interest
on capital leases
|
236 | 384 | 336 | |||||||||
Other
interest and fees
|
4,012 | 4,330 | 2,209 | |||||||||
$ | 86,687 | $ | 63,499 | $ | 48,592 | |||||||
Amortization
of capitalized debt issuance costs
|
9,565 | 4,426 | 6,344 | |||||||||
Amortization
of issuance discount on Convertible Notes
|
19,519 | 14,556 | - | |||||||||
$ | 29,084 | $ | 18,982 | $ | 6,344 | |||||||
Total
interest expense
|
$ | 115,771 | $ | 82,481 | $ | 54,936 |
For
the Year Ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Stock-based
compensation charged
|
6,218 | 6,107 | 5,734 | |||||||||
Income
tax benefit recognized
|
(317 | ) | (641 | ) | (479 | ) |
Date
of Option Grant
|
Number
of Options Granted
|
Risk-free
interest rate (%)
|
Expected
term (years)
|
Expected
volatility
(%)
|
Dividend
yield
(%)
|
Fair
value
(US$/share)
|
||||||||||||||||||
May
15, 2009
|
120,000 | 1.30 | 3.00 | 62.40 | 0.0 | 7.38 | ||||||||||||||||||
May
15, 2009
|
353,875 | 1.30 | 3.75 | 57.50 | 0.0 | 7.65 | ||||||||||||||||||
May
29, 2009
|
33,000 | 1.42 | 3.75 | 58.14 | 0.0 | 8.28 | ||||||||||||||||||
June
19, 2009
|
5,000 | 1.84 | 3.00 | 62.87 | 0.0 | 8.28 | ||||||||||||||||||
July
30, 2009
|
160,000 | 1.73 | 5.25 | 53.60 | 0.0 | 10.06 | ||||||||||||||||||
September
15, 2009
|
5,000 | 1.49 | 3.00 | 63.95 | 0.0 | 14.95 | ||||||||||||||||||
September
16, 2009
|
10,000 | 1.55 | 3.00 | 64.03 | 0.0 | 15.83 | ||||||||||||||||||
December 8,
2009
|
5,000 | 1.21 | 3.00 | 65.04 | 0.0 | 11.33 |
Shares
|
Weighted
Average Exercise Price
(US$/share)
|
Weighted
Average Remaining Contractual Term (years)
|
Aggregate
Intrinsic Value
|
|||||||||||||
Outstanding
at January 1, 2009
|
1,439,042 | $ | 50.81 | 6.17 | $ | 1,458 | ||||||||||
Granted
|
691,875 | 18.68 | - | - | ||||||||||||
Exercised
|
- | - | - | - | ||||||||||||
Forfeited
|
(130,167 | ) | 52.48 | - | - | |||||||||||
Outstanding
at December 31, 2009
|
2,000,750 | $ | 39.59 | 5.24 | $ | 5,645 | ||||||||||
Vested
or expected to vest
|
1,868,694 | 39.15 | 5.19 | 5,313 | ||||||||||||
Exercisable
at December 31, 2009
|
1,093,000 | $ | 47.67 | 4.57 | $ | 2,315 |
|
·
|
Expected forfeitures.
FAS 123(R) (ASC 718) requires that compensation cost only be
calculated on those instruments that are expected to vest in the future.
The number of options that actually vest will usually differ from the
total number issued because employees forfeit options when they do not
meet the service conditions stipulated in the agreement. Since all
forfeitures result from failure to meet service conditions, we have
calculated the forfeiture rate by reference to the historical employee
turnover rate.
|
|
·
|
Expected volatility.
Expected volatility has been calculated based on an analysis of the
historical stock price volatility of the company and its peers for the
preceding period corresponding to the options’ expected life. We consider
this basis to represent the best indicator of expected volatility over the
life of the option.
|
|
·
|
Expected term.
The
expected term of options granted has been calculated following the
“shortcut” method as outlined in section D 2, question 6 of SEC Staff
Accounting Bulletin No. 107
“Share Based
Compensation” (ASC 718) because our options meet the definition of “plain
vanilla” therein. Since insufficient data about holder exercise behavior
is available to make estimates of expected term, we have continued to
apply the shortcut method in accordance with Staff Accounting Bulletin No.
110, (“SAB 110”) (ASC 718).
|
For
the Years Ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Risk-free
interest rate
|
1.4 | % | 1.51 | % | 3.6 | % | ||||||
Expected
term (years)
|
3.92 | 4.60 | 4.9 | |||||||||
Expected
volatility
|
57.2 | % | 45.18 | % | 36.2 | % | ||||||
Dividend
yield
|
0 | % | 0 | % | 0 | % | ||||||
Weighted-average
fair value
|
$ | 8.31 | $ | 12.31 | $ | 40.48 |
2009
|
2008
|
2007
|
||||||||||||||||||||||
Shares
|
Weighted
Average Exercise Price (US$/share)
|
Shares
|
Weighted
Average Exercise Price (US$/share)
|
Shares
|
Weighted
Average Exercise Price (US$/share)
|
|||||||||||||||||||
Outstanding
at beginning of year
|
1,439,042 | $ | 50.81 | 1,176,117 | $ | 56.72 | 1,288,575 | $ | 35.51 | |||||||||||||||
Awards
granted
|
691,875 | 18.68 | 342,000 | 35.92 | 246,000 | 108.48 | ||||||||||||||||||
Awards
exercised
|
- | - | (21,075 | ) | 57.97 | (315,833 | ) | 12.98 | ||||||||||||||||
Awards
expired
|
- | - | - | - | (20,000 | ) | 23.00 | |||||||||||||||||
Awards
forfeited
|
(130,167 | ) | 52.48 | (58,000 | ) | 80.39 | (22,625 | ) | 51.79 | |||||||||||||||
Outstanding
at end of year
|
2,000,750 | $ | 39.59 | 1,439,042 | $ | 50.81 | 1,176,117 | $ | 56.72 |
Options
outstanding
|
||||||||||||||||
Range
of exercise prices
|
Shares
|
Average
remaining contractual life (years)
|
Aggregate
intrinsic value (US$)
|
Weighted
average exercise price (US$/share)
|
||||||||||||
$
0.01 - 20.00
|
726,375 | 4.66 | 4,728 | 17.10 | ||||||||||||
$
20.01 - 40.00
|
577,750 | 6.17 | 917 | 23.02 | ||||||||||||
$
40.01 - 60.00
|
238,500 | 5.79 | - | 52.78 | ||||||||||||
$
60.01 - 80.00
|
217,000 | 4.59 | - | 67.56 | ||||||||||||
$
80.01 - 100.00
|
35,000 | 2.43 | - | 90.43 | ||||||||||||
$
100.01 - 120.00
|
206,125 | 5.21 | - | 111.90 | ||||||||||||
Total
|
2,000,750 | 5.24 | 5,645 | 39.59 | ||||||||||||
Expected
to vest
|
1,868,694 | 5.19 | 5,313 | 39.15 |
Options
exercisable
|
||||||||||||||||
Range
of exercise prices
|
Shares
|
Average
remaining contractual life (years)
|
Aggregate
intrinsic value (US$)
|
Weighted
average exercise price (US$/share)
|
||||||||||||
$
0.01 - 20.00
|
294,000 | 3.98 | 2,112 | 16.42 | ||||||||||||
$
20.01 - 40.00
|
225,625 | 4.70 | 203 | 24.41 | ||||||||||||
$
40.01 - 60.00
|
220,000 | 5.75 | - | 52.31 | ||||||||||||
$
60.01 - 80.00
|
187,000 | 4.21 | - | 66.92 | ||||||||||||
$
80.01 - 100.00
|
35,000 | 2.43 | - | 90.43 | ||||||||||||
$
100.01 - 120.00
|
131,375 | 4.79 | - | 110.96 | ||||||||||||
Total
|
1,093,000 | 4.57 | 2,315 | 47.67 |
For
the Year Ended December 31,
|
||||||||||||
2009
|
2008
|
2007
|
||||||||||
Net
(loss) / income from continuing operations attributable to CME Ltd.
shareholders
|
$ | (96,895 | ) | $ | (265,761 | ) | $ | 93,098 | ||||
Net
loss from discontinued operations
|
(262 | ) | (3,785 | ) | (4,480 | ) | ||||||
Net
(loss) / income attributable to CME Ltd. Shareholders
|
(97,157 | ) | (269,546 | ) | 88,618 | |||||||
Weighted
average outstanding shares of common stock (000’s)
|
54,344 | 42,328 | 41,384 | |||||||||
Dilutive
effect of employee stock options (000’s)
|
- | - | 449 | |||||||||
Common
stock and common stock equivalents (000’s)
|
54,344 | 42,328 | 41,833 | |||||||||
Net
(loss) / income per share:
|
||||||||||||
Basic
|
$ | (1.79 | ) | $ | (6.37 | ) | $ | 2.14 | ||||
Diluted
|
$ | (1.79 | ) | $ | (6.37 | ) | $ | 2.12 |
For
the Year Ended December 31,
|
||||||||||||
Net
Revenues
|
2009
|
2008
|
2007
|
|||||||||
Bulgaria
(1)
|
$ | 3,520 | $ | 1,263 | $ | - | ||||||
Croatia
|
49,139 | 54,651 | 37,193 | |||||||||
Czech
Republic
|
275,883 | 376,546 | 279,237 | |||||||||
Romania
|
176,501 | 274,627 | 215,402 | |||||||||
Slovak
Republic
|
107,356 | 132,692 | 110,539 | |||||||||
Slovenia
|
66,710 | 80,697 | 69,647 | |||||||||
Ukraine
|
32,033 | 99,458 | 126,838 | |||||||||
Romania
(Media Pro Entertainment) (2)
|
5,396 | - | - | |||||||||
Total
Operating Segments
|
$ | 716,538 | $ | 1,019,934 | $ | 838,856 | ||||||
Corporate
|
$ | - | $ | - | $ | - | ||||||
Elimination
|
(2,560 | ) | - | - | ||||||||
Total
|
$ | 713,978 | $ | 1,019,934 | $ | 838,856 |
For
the Year Ended December 31,
|
||||||||||||
Operating
Costs
|
2009
|
2008
|
2007
|
|||||||||
Bulgaria
(1)
|
$ | 6,244 | $ | 2,289 | $ | - | ||||||
Croatia
|
13,140 | 12,723 | 9,999 | |||||||||
Czech
Republic
|
40,439 | 41,037 | 30,325 | |||||||||
Romania
|
24,582 | 32,251 | 23,487 | |||||||||
Slovak
Republic
|
19,496 | 19,379 | 21,017 | |||||||||
Slovenia
|
12,085 | 14,329 | 12,185 | |||||||||
Ukraine
|
17,520 | $ | 23,202 | $ | 19,846 | |||||||
Romania
(Media Pro Entertainment) (2)
|
589 | - | - | |||||||||
Total
Operating Segments
|
$ | 134,095 | $ | 145,210 | $ | 116,859 | ||||||
Corporate
|
$ | - | $ | - | $ | - | ||||||
Elimination
|
- | - | - | |||||||||
Total
|
$ | 134,095 | $ | 145,210 | $ | 116,859 |
For
the Year Ended December 31,
|
||||||||||||
С
ost Of
Programming
|
2009
|
2008
|
2007
|
|||||||||
Bulgaria
(1)
|
$ | 34,979 | $ | 6,506 | $ | - | ||||||
Croatia
|
29,809 | 39,585 | 32,232 | |||||||||
Czech
Republic
|
85,667 | 101,356 | 70,005 | |||||||||
Romania
|
96,839 | 114,716 | 85,288 | |||||||||
Slovak
Republic
|
61,325 | 52,162 | 37,258 | |||||||||
Slovenia
|
30,117 | 32,823 | 27,988 | |||||||||
Ukraine
|
48,699 | 91,055 | 74,459 | |||||||||
Romania
(Media Pro Entertainment) (2)
|
4,692 | - | - | |||||||||
Total
Operating Segments
|
$ | 392,127 | $ | 438,203 | $ | 327,230 | ||||||
Corporate
|
$ | - | $ | - | $ | - | ||||||
Elimination
|
(2,227 | ) | - | - | ||||||||
Total
|
$ | 389,900 | $ | 438,203 | $ | 327,230 |
For
the Year Ended December 31,
|
||||||||||||
Depreciation
|
2009
|
2008
|
2007
|
|||||||||
Bulgaria
(1)
|
$ | 2,696 | $ | 535 | $ | - | ||||||
Croatia
|
5,468 | 6,198 | 3,630 | |||||||||
Czech
Republic
|
17,438 | 18,442 | 10,158 | |||||||||
Romania
|
11,917 | 11,854 | 7,365 | |||||||||
Slovak
Republic
|
7,461 | 6,027 | 3,905 | |||||||||
Slovenia
|
6,343 | 5,526 | 4,647 | |||||||||
Ukraine
|
2,060 | 3,086 | 2,948 | |||||||||
Romania
(Media Pro Entertainment) (2)
|
268 | - | - | |||||||||
Total
Operating Segments
|
$ | 53,651 | $ | 51,668 | $ | 32,653 | ||||||
Corporate
|
$ | 992 | $ | 889 | $ | 842 | ||||||
Elimination
|
- | - | - | |||||||||
Total
|
$ | 54,643 | $ | 52,557 | $ | 33,495 |
For
the Year Ended December 31,
|
||||||||||||
Amortization
of intangible assets
|
2009
|
2008
|
2007
|
|||||||||
Bulgaria
(1)
|
$ | 1,545 | $ | 2,886 | $ | - | ||||||
Croatia
|
- | - | - | |||||||||
Czech
Republic
|
11,194 | 22,723 | 18,652 | |||||||||
Romania
|
2,386 | 3,294 | 3,146 | |||||||||
Slovak
Republic
|
4,765 | 4,961 | 2,882 | |||||||||
Slovenia
|
- | - | - | |||||||||
Ukraine
|
1,678 | 1,517 | 290 | |||||||||
Romania
(Media Pro Entertainment) (2)
|
29 | - | - | |||||||||
Total
Operating Segments
|
$ | 21,597 | $ | 35,381 | $ | 24,970 | ||||||
Corporate
|
$ | - | $ | - | $ | - | ||||||
Elimination
|
- | - | - | |||||||||
Total
|
$ | 21,597 | $ | 35,381 | $ | 24,970 |
For
the Year Ended December 31,
|
||||||||||||
Selling,
General and Administrative Expenses
|
2009
|
2008
|
2007
|
|||||||||
Bulgaria
(1)
|
$ | 7,071 | $ | 2,653 | $ | - | ||||||
Croatia
|
5,967 | 7,758 | 8,844 | |||||||||
Czech
Republic
|
21,314 | 25,498 | 22,411 | |||||||||
Romania
|
16,570 | 15,877 | 13,552 | |||||||||
Slovak
Republic
|
12,655 | 10,923 | 10,732 | |||||||||
Slovenia
|
6,686 | 8,132 | 6,707 | |||||||||
Ukraine
|
6,285 | 20,000 | 9,069 | |||||||||
Romania
(Media Pro Entertainment) (2)
|
381 | - | - | |||||||||
Total
Operating Segments
|
$ | 76,929 | $ | 90,841 | $ | 71,315 | ||||||
Corporate
|
$ | 39,143 | $ | 49,676 | $ | 55,373 | ||||||
Elimination
|
- | - | - | |||||||||
Total
|
$ | 116,072 | $ | 140,517 | $ | 126,688 |
For
the Year Ended December 31,
|
||||||||||||
Impairment
charges
|
2009
|
2008
|
2007
|
|||||||||
Bulgaria
(1)
|
$ | 81,843 | $ | 64,891 | $ | - | ||||||
Croatia
|
- | - | - | |||||||||
Czech
Republic
|
- | - | - | |||||||||
Romania
|
- | - | - | |||||||||
Slovak
Republic
|
- | - | - | |||||||||
Slovenia
|
- | - | - | |||||||||
Ukraine
|
- | 271,861 | - | |||||||||
Romania
(Media Pro Entertainment) (2)
|
- | - | - | |||||||||
Total
Operating Segments
|
$ | 81,843 | $ | 336,752 | $ | - | ||||||
Corporate
|
$ | - | $ | - | $ | - | ||||||
Elimination
|
- | - | - | |||||||||
Total
|
$ | 81,843 | $ | 336,752 | $ | - |
For
the Year Ended December 31,
|
||||||||||||
Operating
income / (loss)
|
2009
|
2008
|
2007
|
|||||||||
Bulgaria
(1)
|
$ | (130,858 | ) | $ | (78,497 | ) | $ | - | ||||
Croatia
|
(5,245 | ) | (11,613 | ) | (17,512 | ) | ||||||
Czech
Republic
|
99,831 | 167,490 | 127,686 | |||||||||
Romania
|
24,207 | 96,635 | 82,564 | |||||||||
Slovak
Republic
|
1,654 | 39,240 | 34,745 | |||||||||
Slovenia
|
11,479 | 19,887 | 18,120 | |||||||||
Ukraine
|
(44,209 | ) | (311,263 | ) | 20,226 | |||||||
Romania
(Media Pro Entertainment) (2)
|
(563 | ) | - | - | ||||||||
Total
Operating Segments
|
$ | (43,704 | ) | $ | (78,121 | ) | $ | 265,829 | ||||
Corporate
|
$ | (39,143 | ) | $ | (49,676 | ) | $ | (55,373 | ) | |||
Elimination
|
(333 | ) | - | - | ||||||||
Total
|
$ | (83,180 | ) | $ | (127,797 | ) | $ | 210,456 |
For
the Year Ended December 31,
|
||||||||||||
EBITDA
|
2009
|
2008
|
2007
|
|||||||||
Bulgaria
(1)
|
$ | (44,774 | ) | $ | (10,185 | ) | $ | - | ||||
Croatia
|
223 | (5,415 | ) | (13,882 | ) | |||||||
Czech
Republic
|
128,463 | 208,655 | 156,496 | |||||||||
Romania
|
38,510 | 111,783 | 93,075 | |||||||||
Slovak
Republic
|
13,880 | 50,228 | 41,532 | |||||||||
Slovenia
|
17,822 | 25,413 | 22,767 | |||||||||
Ukraine
|
(40,471 | ) | (34,799 | ) | 23,464 | |||||||
Romania
(Media Pro Entertainment) (2)
|
(266 | ) | - | - | ||||||||
Total
Operating Segments
|
$ | 113,387 | $ | 345,680 | $ | 323,452 | ||||||
Corporate
|
$ | (38,151 | ) | $ | (48,787 | ) | $ | (54,531 | ) | |||
Elimination
|
(333 | ) | - | - | ||||||||
Total
|
$ | 74,903 | $ | 296,893 | $ | 268,921 |
Total
assets (1):
|
December
31, 2009
|
December
31, 2008
|
||||||
Bulgaria
(2)
|
$ | 31,416 | $ | 107,805 | ||||
Croatia
|
54,612 | 50,431 | ||||||
Czech
Republic
|
1,390,579 | 1,306,997 | ||||||
Romania
|
383,556 | 387,845 | ||||||
Slovak
Republic
|
243,336 | 240,899 | ||||||
Slovenia
|
102,836 | 93,022 | ||||||
Ukraine
|
86,349 | 129,590 | ||||||
Romania
(Media Pro Entertainment) (3)
|
179,267 | - | ||||||
Total
Operating Segments
|
$ | 2,471,951 | $ | 2,316,589 | ||||
Corporate
|
$ | 401,162 | $ | 84,543 | ||||
Elimination
|
(326 | ) | - | |||||
Total
|
$ | 2,872,787 | $ | 2,401,132 | ||||
Reconciliation
to consolidated balance sheets:
|
||||||||
Assets
held for sale (4)
|
$ | - | $ | 5,484 | ||||
Total
assets
|
$ | 2,872,787 | $ | 2,406,616 |
(1)
|
Segment
assets exclude any inter-company investments, loans, payables and
receivables.
|
(2)
|
We
acquired our Bulgaria operations on August 1,
2008.
|
(3)
|
We
acquired Media Pro Entertainment on December 9,
2009.
|
(4)
|
Assets
held for sale at December 31, 2008 represented the CITI channel, which was
disposed of in February 2009.
|
Long-lived
assets (1):
|
December
31, 2009
|
December
31, 2008
|
||||||
Bulgaria
(2)
|
$ | 8,492 | $ | 6,404 | ||||
Croatia
|
11,743 | 13,450 | ||||||
Czech
Republic
|
66,533 | 61,463 | ||||||
Romania
|
45,229 | 52,193 | ||||||
Slovak
Republic
|
36,989 | 40,025 | ||||||
Slovenia
|
26,713 | 24,932 | ||||||
Ukraine
|
4,726 | 7,083 | ||||||
Romania
(Media Pro Entertainment) (3)
|
78,213 | - | ||||||
Total
Operating Segments
|
$ | 278,638 | $ | 205,550 | ||||
Corporate
|
$ | 798 | $ | 1,117 | ||||
Elimination
|
- | - | ||||||
Total
long-lived assets
|
$ | 279,436 | $ | 206,667 |
December
31, 2009
|
||||
Bulgaria
|
$ | 94,516 | ||
Croatia
|
33,950 | |||
Czech
Republic
|
95,611 | |||
Romania
|
140,278 | |||
Slovak
Republic
|
48,718 | |||
Slovenia
|
16,572 | |||
Ukraine
|
56,957 | |||
Media
Pro Entertainment (1)
|
8,940 | |||
Total
|
$ | 495,542 |
December
31, 2009
|
||||
2009
|
$ | 7,267 | ||
2010
|
5,306 | |||
2011
|
4,448 | |||
2012
|
6,398 | |||
2013
|
2,165 | |||
2014
and thereafter
|
11,332 | |||
Total
|
$ | 36,916 |
Issuer
and Restricted subsidiaries
|
Unrestricted
Subsidiaries
|
Intra-group
eliminations
|
Total
|
|||||||||||||
Consolidated
Statement of Operations:
|
||||||||||||||||
For
the Year Ended December 31, 2009
|
||||||||||||||||
Net
revenues
|
$ | 678,424 | $ | 35,554 | $ | - | $ | 713,978 | ||||||||
Operating
income / (loss)
|
91,464 | (174,644 | ) | - | (83,180 | ) | ||||||||||
Depreciation
of station property, plant and equipment
|
48,894 | 4,757 | - | 53,651 | ||||||||||||
Amortization
of broadcast licenses and other intangibles
|
18,373 | 3,224 | - | 21,597 | ||||||||||||
Net
income / (loss) attributable to CME Ltd.
|
$ | 63,448 | $ | (160,605 | ) | $ | - | $ | (97,157 | ) |
Consolidated
Balance Sheet:
|
||||||||||||||||
As
at December 31, 2009
|
||||||||||||||||
Cash
and cash equivalents
|
243,314 | 215,215 | - | 458,529 | ||||||||||||
Third
Party Debt (1)
|
1,377,194 | 674 | - | 1,377,868 | ||||||||||||
Total
assets
|
3,365,435 | 335,623 | (828,271 | ) | 2,872,787 | |||||||||||
Total
CME Ltd. shareholders’ Equity
|
1,683,789 | 195,459 | (701,659 | ) | 1,177,589 |
Issuer
and Restricted subsidiaries
|
Unrestricted
Subsidiaries
|
Intra-group
eliminations
|
Total
|
|||||||||||||
Consolidated
Statement of Operations:
|
||||||||||||||||
For
the Year Ended December 31, 2008
|
||||||||||||||||
Net
revenues
|
$ | 919,351 | $ | 100,583 | $ | - | $ | 1,019,934 | ||||||||
Operating
income / (loss)
|
263,892 | (391,689 | ) | - | (127,797 | ) | ||||||||||
Depreciation
of station property, plant and equipment
|
48,047 | 3,621 | - | 51,668 | ||||||||||||
Amortization
of broadcast licenses and other intangibles
|
30,978 | 4,403 | - | 35,381 | ||||||||||||
Net
income / (loss) attributable to CME Ltd.
|
$ | 128,572 | $ | (398,118 | ) | $ | - | $ | (269,546 | ) |
Consolidated
Balance Sheet:
|
||||||||||||||||
As
at December 31, 2008
|
||||||||||||||||
Cash
and cash equivalents
|
92,528 | 14,905 | - | 107,433 | ||||||||||||
Third
Party Debt (1)
|
1,002,923 | 862 | - | 1,003,785 | ||||||||||||
Total
assets
|
2,766,862 | 238,462 | (598,708 | ) | 2,406,616 | |||||||||||
Total
CME Ltd. shareholders’ Equity
|
$ | 1,498,961 | $ | 109,065 | $ | (512,768 | ) | $ | 1,095,258 |
Issuer
and Restricted subsidiaries
|
Unrestricted
Subsidiaries
|
Intra-group
eliminations
|
Total
|
|||||||||||||
Consolidated
Statement of Operations:
|
||||||||||||||||
For
the Year Ended December 31, 2007
|
||||||||||||||||
Net
revenues
|
$ | 712,018 | $ | 126,838 | $ | - | $ | 838,856 | ||||||||
Operating
income / (loss)
|
190,230 | 20,226 | - | 210,456 | ||||||||||||
Depreciation
of station property, plant and equipment
|
29,705 | 2,948 | - | 32,653 | ||||||||||||
Amortization
of broadcast licenses and other intangibles
|
24,679 | 291 | - | 24,970 | ||||||||||||
Net
income / (loss) attributable to CME Ltd.
|
$ | 90,341 | $ | (1,723 | ) | $ | - | $ | 88,618 |
For
the Year ended December 31, 2009
|
||||||||||||||||
First
Quarter
(Unaudited)
|
Second
Quarter
(Unaudited)
|
Third
Quarter
(Unaudited)
|
Fourth
Quarter
(Unaudited)
|
|||||||||||||
(US$
000’s, except per share data)
|
||||||||||||||||
Consolidated
Statement of Operations data:
|
||||||||||||||||
Net
revenues
|
$ | 141,221 | $ | 186,185 | $ | 134,482 | $ | 252,090 | ||||||||
Cost
of revenue
|
122,032 | 145,123 | 143,046 | 189,042 | ||||||||||||
Operating
(loss) / income
|
(84,482 | ) | 11,703 | (33,450 | ) | 23,049 | ||||||||||
Net
(loss) / income from continuing operations
|
(46,678 | ) | 22,106 | (24,294 | ) | (58,941 | ) | |||||||||
Net
(loss) from discontinued operations
|
(262 | ) | - | - | - | |||||||||||
Net (loss)
/ income attributable to CME Ltd.
|
$ | (44,438 | ) | $ | 24,081 | $ | (21,550 | ) | $ | (55,250 | ) | |||||
Net
(loss) / income per share:
|
||||||||||||||||
Basic
EPS
|
$ | (1.05 | ) | $ | 0.47 | $ | (0.35 | ) | $ | (0.89 | ) | |||||
Effect
of dilutive securities
|
- | - | - | |||||||||||||
Diluted
EPS
|
$ | (1.05 | ) | $ | 0.47 | $ | (0.35 | ) | $ | (0.89 | ) | |||||
For
the Year ended December 31, 2008
|
||||||||||||||||
First
Quarter
(Unaudited)
|
Second
Quarter
(Unaudited)
|
Third
Quarter
(Unaudited)
|
Fourth
Quarter
(Unaudited)
|
|||||||||||||
(US$
000’s, except per share data)
|
||||||||||||||||
Consolidated
Statement of Operations data:
|
||||||||||||||||
Net
revenues
|
$ | 223,023 | $ | 304,808 | $ | 200,603 | 291,501 | |||||||||
Cost
of revenue
|
146,886 | 174,812 | 158,862 | 189,903 | ||||||||||||
Operating
(loss) / income
|
45,474 | 98,743 | 7,156 | (279,170 | ) | |||||||||||
Net
(loss) / income from continuing operations
|
15,672 | 65,518 | (18,568 | ) | (326,316 | ) | ||||||||||
Net
(loss) from discontinued operations
|
(750 | ) | (758 | ) | (1,027 | ) | (1,250 | ) | ||||||||
Net (loss)
/ income attributable to CME Ltd.
|
$ | 14,445 | $ | 63,465 | $ | (19,329 | ) | $ | (328,127 | ) | ||||||
Net
income / (loss) per share:
|
||||||||||||||||
Basic
EPS
|
$ | 0.34 | $ | 1.50 | $ | (0.46 | ) | $ | (7.75 | ) | ||||||
Effect
of dilutive securities
|
- | (0.02 | ) | - | - | |||||||||||
Diluted
EPS
|
$ | 0.34 | $ | 1.48 | $ | ( 0.46 | ) | $ | (7.75 | ) |
ITEM
9.
|
CHANGES
IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE
|
ITEM
9A
.
|
CONTROLS
AND PROCEDURES
|
ITEM
9B.
|
OTHER
INFORMATION
|
ITEM
10.
|
DIRECTORS,
EXECUTIVE OFFICERS AND CORPORATE
GOVERNANCE
|
ITEM 11
.
|
EXECUTIVE
COMPENSATION
|
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED
STOCKHOLDER MATTERS
|
ITEM
13.
|
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE
|
ITEM
14.
|
PRINCIPAL
ACCOUNTANT FEES AND SERVICES
|
ITEM
15.
|
EXHIBITS
AND FINANCIAL STATEMENT SCHEDULES
|
|
·
|
Report
of Independent Registered Public Accounting
Firm;
|
|
·
|
Consolidated
Balance Sheets as of December 31, 2009 and
2008;
|
|
·
|
Consolidated
Statements of Operations and Comprehensive Income for the years ended
December 31, 2009, 2008 and 2007;
|
|
·
|
Consolidated
Statement of Equity for the years ended December 31, 2009, 2008 and
2007;
|
|
·
|
Consolidated
Statements of Cash Flows for the years ended December 31, 2009, 2008 and
2007; and
|
|
·
|
Notes
to Consolidated Financial
Statements.
|
Exhibit
Number
|
Description
|
|
3.01*
|
Memorandum
of Association (incorporated by reference to Exhibit 3.01 to the Company’s
Registration Statement No. 3380344 on Form S-1, filed June 17,
1994).
|
|
3.02*
|
Bye-Laws
of Central European Media Enterprises Ltd., as amended and restated on
June 3, 2008 (incorporated by reference to Exhibit 3.02 to the Company’s
Annual Report on Form 10-K for the year ended December 31,
2008).
|
|
3.03*
|
Memorandum
of Increase of Share Capital (incorporated by reference to Exhibit 3.03 to
Amendment No. 1 to the Company’s Registration Statement No. 33-80344 on
Form S-1, filed August 19, 1994).
|
|
3.04*
|
Memorandum
of Reduction of Share Capital (incorporated by reference to Exhibit 3.04
to Amendment No. 2 to the Company’s Registration Statement No. 33-80344 on
Form S-1, filed September 14, 1994).
|
|
3.05*
|
Certificate
of Deposit of Memorandum of Increase of Share Capital executed by the
Registrar of Companies on May 20, 1997 (incorporated by reference to
Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1997).
|
|
4.01*
|
Specimen
Class A Common Stock Certificate (incorporated by reference to Exhibit
4.01 to Amendment No. 1 to the Company’s Registration Statement No.
33-80344 on Form S-1, filed August 19,
1994).
|
Exhibit
Number
|
Description
|
|
4.02*
|
Indenture
among Central European Media Enterprises Ltd., Central European Media
Enterprises N.V., CME Media Enterprises B.V., J.P. Morgan Chase Bank N.A.,
London Branch and J.P. Morgan Bank Luxembourg S.A., dated May 5, 2005
(incorporated by reference to the Company’s Quarterly Report on Form 10-Q
for the quarterly period ended March 30, 2005).
|
|
4.03*
|
Indenture
among Central European Media Enterprises Ltd. as Issuer, Central European
Media Enterprises N.V. and CME Media Enterprises B.V. as Subsidiary
Guarantors, BNY Corporate Trustee Services Limited as Trustee, The Bank of
New York as Security Trustee, Principal Paying Agent and Transfer Agent
and The Bank of New York (Luxembourg) S.A. as Registrar, Luxembourg
Transfer Agent and Luxembourg Paying Agent, dated May 16, 2007
(incorporated by reference to Exhibit 10.65 to the Company’s Quarterly
Report on Form 10-Q for the quarterly period ended June 30,
2007).
|
|
4.04*
|
Registration
Rights Agreement among Central European Media Enterprises Ltd., Lehman
Brothers Inc., J.P. Morgan Securities Inc., Deutsche Bank Securities Inc.,
BNP Paribas and ING Bank N.V., London Branch, dated March 10, 2008
(incorporated by reference to Exhibit 4.1 to the Company’s Quarterly
Report on Form 10-Q for the quarterly period ended March 31,
2008).
|
|
4.05*
|
Indenture
among Central European Media Enterprises Ltd., Central European Media
Enterprises N.V., CME Media Enterprises B.V. and The Bank of New York,
dated March 10, 2008 (incorporated by reference to Exhibit 4.2 to the
Company’s Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2008).
|
|
4.06*
|
Indenture
among Central European Media Enterprises Ltd. as Issuer, Central European
Media Enterprises N.V. and CME Media Enterprises B.V. as Subsidiary
Guarantors, The Bank of New York, acting through its London Branch, as
Trustee, The Bank of New York, acting through its London Branch, as
Principal Paying Agent and Transfer Agent, The Law Debenture Trust
Corporation p.l.c. as Security Trustee and The Bank of New York
(Luxembourg) S.A. as Registrar, Luxembourg Transfer Agent and Luxembourg
Paying Agent, dated September 17, 2009 (incorporated by reference to
Exhibit 4.1 to the Company’s Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2009).
|
|
Warrant
to Purchase Common Stock issued to Metrodome B.V. (formerly, Media Pro
B.V.), dated December 9, 2009.
|
||
Warrant
to Purchase Common Stock issued to Media Pro Management S.A., dated
December 9, 2009.
|
||
4.09*
|
Registration
Rights Agreement between Central European Media Enterprises Ltd. and Igor
Kolomoisky, dated as of August 24, 2007 (incorporated by reference to
Exhibit 4.03 to the Company’s Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2007).
|
|
4.10*
|
Amended
and Restated Registration Rights Agreement between Central European Media
Enterprises Ltd. and Testora Ltd., dated May 11, 2007 (incorporated by
reference to Exhibit 10.64 to the Company’s Quarterly Report on Form 10-Q
for the quarterly period ended June 30, 2007).
|
Exhibit
Number
|
Description | |
Registration
Rights Agreement by and between the Company and Time Warner Media Holdings
B.V., dated May 18, 2009.
|
||
10.01*+
|
Central
European Media Enterprises Ltd. Amended and Restated Stock Incentive Plan,
as amended on April 25, 2007 (incorporated by reference to the Company’s
Annual Report on Form 10-K for the year ended December 31,
2008).
|
|
10.02*
|
Agreement
between CME Media Enterprises B.V. and the Tax and Customs Administration
of The Netherlands, dated March 24, 2004 (incorporated by reference to the
Company’s Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2004).
|
|
10.03*
|
Pro
TV S.A. put-option between CME Romania B.V., Adrian Sarbu and Rootland
Trading Ltd. (incorporated by reference to the Company’s Quarterly Report
on Form 10-Q for the quarterly period ended September 30,
2004).
|
|
10.04*
|
Media
Pro International S.A. put-option between CME Romania B.V., Adrian Sarbu
and Rootland Trading Ltd. (incorporated by reference to the Company’s
Quarterly Report on Form 10-Q for the quarterly period ended September 30,
2004).
|
|
10.05*+
|
Employee
Stock Option Form (incorporated by reference to the Company’s Quarterly
Report on Form 10-Q for the quarterly period ended September 30,
2004).
|
|
10.06*
|
Framework
Agreement among CME Media Enterprises B.V., Central European Media
Enterprises Ltd. and PPF (Cyprus) Ltd., dated December 13, 2004
(incorporated by reference to the Company’s Annual Report on Form 10-K for
the period ended December 31, 2004).
|
|
10.07*
|
Agreement
on Settlement of Disputes and Transfer of Ownership Interest between Mr.
Peter Kršák and CME Media Enterprises B.V., dated February 24, 2005
(incorporated by reference to the Company’s Annual Report on Form 10-K for
the period ended December 31, 2004).
|
|
10.08*
|
Subscription
Agreement between Central European Media Enterprises Ltd. and PPF (Cyprus)
Ltd., dated May 2, 2005 (incorporated by reference to the Company’s
Quarterly Report on Form 10-Q for the quarterly period ended March 30,
2005).
|
|
10.9*
|
Deed
of Guarantee among PPF a.s., Central European Media Enterprises Ltd. and
CME Media Enterprises B.V., dated May 2, 2005 (incorporated by reference
to the Company’s Quarterly Report on Form 10-Q for the quarterly period
ended March 30, 2005).
|
|
10.10*
|
PPF
Group Guarantee among PPF Group N.V., Central European Media Enterprises
Ltd. and CME Media Enterprises B.V., dated May 2, 2005 (incorporated by
reference to the Company’s Quarterly Report on Form 10-Q for the quarterly
period ended March 30, 2005).
|
Exhibit
Number
|
Description
|
|
10.12*
|
€37.5
million Facility Agreement, between Produkcija Plus Storitveno Podjetje
d.o.o., ING Bank N.V., Nova Ljubljanska banka d.d. and Bank Austria
Creditanstalt d.d., dated July 29, 2005 (incorporated by reference to the
Company’s Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 2005).
|
|
10.13*
|
Credit
Line Agreement No. 2644105/LCD between Ceska Sporitelna a.s. and CET 21
spol. s r.o., dated October 27, 2005 (incorporated by reference to the
Company’s Annual Report on Form 10-K for the period ended December 31,
2005).
|
|
10.14*
|
Loan
Agreement between Central European Media Enterprises Ltd. and European
Bank for Reconstruction and Development, dated July 21, 2006 (incorporated
by reference to the Company’s Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2006).
|
|
10.15*
|
Pledge
Agreement on Shares in Central European Media Enterprises N.V. among
Central European Media Enterprises Ltd., European Bank for Reconstruction
and Development and Central European Media Enterprises N.V., dated July
21, 2006 (incorporated by reference to the Company’s Quarterly Report on
Form 10-Q for the quarterly period ended June 30,
2006).
|
|
10.16*
|
Pledge
of Shares in CME Media Enterprises B.V. among Central European Media
Enterprises N.V., European Bank for Reconstruction and Development and CME
Media Enterprises B.V., dated July 21, 2006 (incorporated by reference to
the Company’s Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 2006).
|
|
10.17*
|
Deed
of Guarantee and Indemnity between Central European Media Enterprises N.V.
and European Bank for Reconstruction and Development, dated July 21, 2006
(incorporated by reference to the Company’s Quarterly Report on Form 10-Q
for the quarterly period ended June 30, 2006).
|
|
10.18*
|
Deed
of Guarantee and Indemnity between CME Media Enterprises B.V. and European
Bank for Reconstruction and Development, dated July 21, 2006 (incorporated
by reference to the Company’s Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2006).
|
|
10.19*
|
Contract
Assignment
between CME Media
Enterprises B.V., Central European Media Enterprises Ltd. and European
Bank for Reconstruction and Development, dated July 21, 2006 (incorporated
by reference to the Company’s Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2006).
|
|
10.22*+
|
Amended
and Restated Contract of Employment between Wallace Macmillan, Chief
Financial Officer, and CME Development Corporation, dated October 6, 2006
(incorporated by reference to the Company’s Quarterly Report on Form 10-Q
for the quarterly period ended September 30, 2006).
|
|
10.23*
|
Subscription
Agreement between Central European Media Enterprises Ltd. and Igor
Kolomoisky, dated August 24, 2007 (incorporated by reference to Exhibit
4.02 to the Company’s Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 2007).
|
Exhibit
Number
|
Description
|
|
10.24*
|
Supplemental
Agreement Relating to the Loan Agreement dated July 21, 2006 (as amended
by an amending Letter Agreement dated November 16, 2006) between Central
European Media Enterprises Ltd. and European Bank for Reconstruction and
Development, dated August 22, 2007 (incorporated by reference to Exhibit
10.68 to the Company’s Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 2007).
|
|
10.25*
|
Loan
Agreement between Central European Media Enterprises Ltd. and European
Bank for Reconstruction and Development, dated August 22, 2007
(incorporated by reference to Exhibit 10.69 to the Company’s Quarterly
Report on Form 10-Q for the quarterly period ended September 30,
2007).
|
|
10.26*
|
Agreement on
Transfer of Participation Interest in Media Invest, spol. s.r.o. between
Mr. Jan Kovà
čik and CME Slovak Holdings B.V., dated July 13, 2007
(incorporated by reference to Exhibit 10.70 to the Company’s Quarterly
Report on Form 10-Q for the quarterly period ended September 30,
2007).
|
|
10.27*
|
Agreement on
Consideration between Mr. Jan Kovà
čik and CME Slovak Holdings B.V.,
dated July 13, 2007 (incorporated by reference to Exhibit 10.71 to the
Company’s Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 2007).
|
|
10.28*
|
Purchase
Agreement among Central European Media Enterprises Ltd. as Issuer, Central
European Media Enterprises N.V. and CME Media Enterprises B.V. as
Guarantors and J.P. Morgan Securities Ltd., Lehman Brothers International
(Europe) and ING Bank N.V., London Branch as the Initial Purchasers, dated
May 9, 2007 (incorporated by reference to Exhibit 10.63 to the Company’s
Quarterly Report on Form 10-Q for the quarterly period ended June 30,
2007).
|
|
10.29*
|
Sale-Purchase
Contract for Shares in Pro TV S.A. between Rootland Trading Ltd. and CME
Romania B.V., dated June 1, 2007 (incorporated by reference to Exhibit
10.66 to the Company’s Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 2007).
|
|
10.30*
|
Sale-Purchase
Contract for Shares in Media Pro International S.A. between Rootland
Trading Ltd. and CME Romania B.V., dated June 1, 2007 (incorporated by
reference to Exhibit 10.67 to the Company’s Quarterly Report on Form 10-Q
for the quarterly period ended June 30, 2007).
|
|
10.31*
|
Framework
Agreement among Aleksandr Rodnyansky, Boris Fuchsmann, International
Teleservices Ltd., Central European Media Enterprises Ltd., CME Media
Enterprises B.V., CME Ukraine Holding GmbH, CET 21 spol. s r.o., Ukrainian
Media Services LLC, Studio 1+1 LLC, Foreign Enterprise Inter-Media,
Innova Film GmbH, International Media Services Ltd. and TV Media Planet
Ltd., dated January 31, 2008 (incorporated by reference to Exhibit 10.39
to the Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2007).
|
|
10.32*
|
Termination
Agreement by and between Aleksandr Rodnyansky, Boris Fuchsmann,
International Teleservices Ltd., Central European Media Enterprises Ltd.,
CME Media Enterprises B.V., CME Ukraine Holding GmbH, CET 21 spol. s r.o.,
Ukrainian Media Services LLC, Studio 1+1 LLC, Foreign Enterprise
Inter-Media, Innova Film GmbH, International Media Services Ltd and TV
Media Planet Ltd., dated January 31, 2008 (incorporated by reference to
Exhibit 10.40 to the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2007).
|
Exhibit
Number
|
Description
|
|
10.33*
|
Assignment
Agreement among Igor Kolomoisky, Manita Investments Limited, Global Media
Group Ltd., Torcensta Holding Ltd., Central European Media Enterprises
Ltd., CME Media Enterprises B.V., CME Ukraine Holding GmbH and Ukrainian
Media Services LLC, dated January 31, 2008 (incorporated by reference to
Exhibit 10.41 to the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2007).
|
|
10.34*
|
Agreement
between Mr. Richard Anthony Sheldon and Nova TV d.d., dated November 26,
2007 (incorporated by reference to Exhibit 10.42 to the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31,
2007).
|
|
10.35*
|
Agreement
among Global Komunikacije d.o.o., Nova TV d.d. and Operativna Kompanija
d.o.o., dated November 26, 2007 (incorporated by reference to Exhibit
10.43 to the Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2007).
|
|
10.36*
|
Agreement
among Narval A.M. d.o.o., Studio Millenium d.o.o. and Nova TV d.d., dated
November 26, 2007 (incorporated by reference to Exhibit 10.44 to the
Company’s Annual Report on Form 10-K for the fiscal year ended December
31, 2007).
|
|
10.37*
|
Purchase
Agreement among Central European Media Enterprises Ltd., Lehman Brothers
Inc., J.P. Morgan Securities Inc., Deutsche Bank Securities Inc., BNP
Paribas and ING Bank N.V., London Branch, dated March 4, 2008
(incorporated by reference to Exhibit 10.1 to the Company’s Quarterly
Report on Form 10-Q for the quarterly period ended March 31,
2008).
|
|
10.38*
|
Deed
of Amendment to the Intercreditor Agreement dated July 21, 2006, as
amended, among Central European Media Enterprises Ltd., Central European
Media Enterprises N.V., CME Media Enterprises B.V., The Bank of New York,
BNY Corporate Trustee Services Limited and European Bank for
Reconstruction and Development, dated March 10, 2008 (incorporated by
reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q
for the quarterly period ended March 31, 2008).
|
|
10.39*
|
Security
Assignment between Central European Media Enterprises Ltd., CME Media
Enterprises B.V. and The Bank of New York, dated March 10, 2008
(incorporated by reference to Exhibit 10.3 to the Company’s Quarterly
Report on Form 10-Q for the quarterly period ended March 31,
2008).
|
|
10.40*
|
Pledge
Agreement among Central European Media Enterprises Ltd., Central European
Media Enterprises N.V. and The Bank of New York, dated March 10, 2008
(incorporated by reference to Exhibit 10.4 to the Company’s Quarterly
Report on Form 10-Q for the quarterly period ended March 31,
2008).
|
|
10.41*
|
Deed
of Pledge of Shares among Central European Media Enterprises N.V., CME
Media Enterprises B.V. and The Bank of New York, dated March 10, 2008
(incorporated by reference to Exhibit 10.5 to the Company’s
Quarterly Report on Form 10-Q for the quarterly period ended March 31,
2008).
|
Exhibit
Number
|
Description
|
|
10.42*
|
Agreement
to Provide Advertising Services between Video International-Prioritet LLC
and Broadcasting Company “Studio 1+1” LLC dated November 30, 2006
(incorporated by reference to Exhibit 10.25 to the Company’s Annual Report
on Form 10-K for the fiscal year ended December 31,
2007).
|
|
10.43*
|
Capped
Call Transaction between Central European Media Enterprises Ltd., Deutsche
Bank AG, London Branch and Deutsche Bank Securities Inc., dated March 4,
2008 (incorporated by reference to Exhibit 10.7 to the Company’s Quarterly
Report on Form 10-Q for the quarterly period ended March 31,
2008).
|
|
10.44*
|
Capped
Call Transaction between Central European Media Enterprises Ltd. and BNP
Paribas, dated March 4, 2008 (incorporated by reference to Exhibit 10.8 to
the Company’s Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2008).
|
|
10.45*
|
Capped
Call Transaction between the Company and Lehman Brothers OTC Derivatives
Inc., dated March 4, 2008 (incorporated by reference to Exhibit 10.6 to
the Company’s Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2008).
|
|
10.46*
|
Master
Share Purchase Agreement between CME Media Enterprises B.V. and Top Tone
Media Holdings Limited, dated July 28, 2008 (incorporated by reference to
Exhibit 10.10 to the Company’s Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2008).
|
|
10.47*
|
TV2
Group Shareholders Agreement between CME Media Enterprises B.V., Top Tone
Media Holdings Limited and Equip Limited dated July 28, 2008 (incorporated
by reference to Exhibit 10.11 to the Company’s Quarterly Report on Form
10-Q for the quarterly period ended September 30,
2008).
|
|
10.48*
|
Separation
Agreement between CME Development Corporation and Michael Garin, dated
December 14, 2008 (incorporated by reference to Exhibit 10.1 to the
Company’s Current Report on Form 8-K filed on December 16,
2008).
|
|
10.49*
|
Subscription
Agreement, by and between Central European Media Enterprises Ltd. and TW
Media Holdings LLC, dated March 22, 2009 (incorporated by reference to
Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2009).
|
|
10.50*
|
Indemnity
Agreement, by and among Central European Media Enterprises Ltd., Ronald S.
Lauder and RSL Savannah LLC, dated as of March 22, 2009 (incorporated by
reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q
for the quarterly period ended March 31, 2009).
|
|
10.51*+
|
Contract
of Employment dated June 30, 2009 between CME Development Corporation and
Charles Frank (incorporated by reference to Exhibit 10.3 to the Company’s
Quarterly Report on Form 10-Q for the quarterly period ended June 30,
2009).
|
|
10.52*
|
First
Amended and Restated Framework Agreement among Central European Media
Enterprises Ltd., CME Ukraine Holding B.V., CME Cyprus Holding Limited,
Alstrom Business Corp, Michalakis Tsitsekkos, Igor Kolomoisky and Ihor
Surkis, dated July 22, 2009 (incorporated by reference to Exhibit 10.4 to
the Company’s Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 2009).
|
Exhibit
Number
|
Description
|
|
10.53*
|
Framework
Agreement among CME Production B.V., CME Romania B.V., Media Pro
Management S.A., Metrodome B.V. (formerly, Media Pro B.V.). and Adrian
Sarbu, dated July 27, 2009 (incorporated by reference to Exhibit 10.5 to
the Company’s Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 2009).
|
|
10.54*+
|
Contract
of Employment between CME Media Services Limited and Adrian Sarbu, dated
July 27, 2009 (incorporated by reference to Exhibit 10.6 to the Company’s
Quarterly Report on Form 10-Q for the quarterly period ended September 30,
2009).
|
|
10.55*
|
Dealer
Manager Agreement between Central European Media Enterprises Ltd. and
Deutsche Bank AG, London Branch, dated September 7, 2009 (incorporated by
reference to Exhibit 10.7 to the Company’s Quarterly Report on Form 10-Q
for the quarterly period ended September 30, 2009).
|
|
10.56*
|
Tender
Agency Agreement between Central European Media Enterprises Ltd., Deutsche
Bank AG, London Branch, as Principal Tender Agent, and certain other
tender agents, dated September 7, 2009 (incorporated by reference to
Exhibit 10.8 to the Company’s Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2009).
|
|
10.57*
|
Purchase
Agreement among Central European Media Enterprises Ltd., Central European
Media Enterprises N.V., CME Media Enterprises B.V., Deutsche Bank AG,
London Branch, BNP Paribas London Branch, Merrill Lynch International,
Erste Group Bank AG and J.P. Morgan Securities Ltd., dated September 10,
2009 (incorporated by reference to Exhibit 10.9 to the Company’s Quarterly
Report on Form 10-Q for the quarterly period ended September 30,
2009).
|
|
10.58*
|
Global
Deed of Release among Central European Media Enterprises Ltd., CME Media
Enterprises B.V., Central European Media Enterprises N.V. and European
Bank for Reconstruction and Development, dated September 16, 2009
(incorporated by reference to Exhibit 10.10 to the Company’s Quarterly
Report on Form 10-Q for the quarterly period ended September 30,
2009).
|
|
10.59*
|
Contract
Assignment between CME Media Enterprises B.V, Central European Media
Enterprises Ltd., The Bank of New York Mellon, acting through its London
Branch and The Law Debenture Trust Corporation p.l.c., dated September 17,
2009 (incorporated by reference to Exhibit 10.11 to the Company’s
Quarterly Report on Form 10-Q for the quarterly period ended September 30,
2009).
|
|
10.60*
|
Deed
of Amendment to the Intercreditor Agreement dated July 21, 2006, as
amended, among Central European Media Enterprises Ltd., Central European
Media Enterprises N.V., CME Media Enterprises B.V., The Bank of New York
Mellon (formerly JPMorgan Chase Bank, N.A., London Branch), BNY Corporate
Trustee Services Limited, The Bank of New York Mellon (formerly The Bank
of New York), The Bank of New York Mellon (formerly The Bank of New York),
European Bank for Reconstruction and Development, The Bank of New York
Mellon, acting through its London Branch and The Law Debenture Trust
Corporation p.l.c., dated September 17, 2009 (incorporated by reference to
Exhibit 10.12 to the Company’s Quarterly Report on Form 10-Q for the
quarterly period ended September 30,
2009).
|
Exhibit
Number
|
Description
|
|
10.61*
|
Pledge
Agreement among Central European Media Enterprises Ltd., Central European
Media Enterprises N.V., The Bank of New York Mellon, acting through its
London Branch and The Law Debenture Trust Corporation p.l.c., dated
September 17, 2009 (incorporated by reference to Exhibit 10.13 to the
Company’s Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 2009).
|
|
10.62*
|
Deed
of Pledge of Shares among Central European Media Enterprises N.V., CME
Media Enterprises B.V., The Bank of New York Mellon, acting through its
London Branch and The Law Debenture Trust Corporation p.l.c., dated
September 17, 2009 (incorporated by reference to Exhibit 10.14 to the
Company’s Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 2009).
|
|
10.63*
|
Purchase
Agreement among Central European Media Enterprises Ltd., Central European
Media Enterprises N.V., CME Media Enterprises B.V., Deutsche Bank AG,
London Branch, BNP Paribas London Branch, Merrill Lynch International,
Erste Group Bank AG, ING Bank N.V., London Branch and J.P. Morgan
Securities Ltd., dated September 23, 2009 (incorporated by reference to
Exhibit 10.15 to the Company’s Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2009).
|
|
10.64*
|
Global
Deed of Release among Central European Media Enterprises Ltd., CME Media
Enterprises B.V., Central European Media Enterprises N.V. and The Bank of
New York Mellon, acting through its London Branch (formerly JPMorgan Chase
Bank, N.A., London Branch), dated September 29, 2009 (incorporated by
reference to Exhibit 10.16 to the Company’s Quarterly Report on Form 10-Q
for the quarterly period ended September 30, 2009).
|
|
10.65*
|
Deed
of Amendment to the Intercreditor Agreement dated July 21, 2006, as
amended, among Central European Media Enterprises Ltd., Central European
Media Enterprises N.V., CME Media Enterprises B.V., The Bank of New York
Mellon (formerly JPMorgan Chase Bank, N.A., London Branch), BNY Corporate
Trustee Services Limited, The Bank of New York Mellon (formerly The Bank
of New York), The Bank of New York Mellon (formerly The Bank of New York),
The Bank of New York Mellon, acting through its London Branch and The Law
Debenture Trust Corporation p.l.c., dated September 29, 2009 (incorporated
by reference to Exhibit 10.17 to the Company’s Quarterly Report on Form
10-Q for the quarterly period ended September 30,
2009).
|
|
Amendment
to the Framework Agreement among CME Production B.V., CME Romania B.V.,
Media Pro Management S.A., Metrodome B.V. (formerly, Media Pro B.V.). and
Adrian Sarbu, dated December 9, 2009.
|
||
Subscription
Agreement among Central European Media Enterprises Ltd., Media Pro
Management S.A. and Metrodome B.V. (formerly, Media Pro B.V.), dated
December 9, 2009.
|
||
Share
Purchase Agreement among Central European Media Enterprises Ltd., CME
Cyprus Holding II Limited, Igor Kolomoisky and Harley Trading Limited,
dated January 20, 2010.
|
||
Termination
agreement among Central European Media Enterprises Ltd., CME Ukraine
Holding B.V., CME Cyprus Holding Limited, Alstrom Business Corp,
Michalakis Tsitsekkos, Igor Kolomoisky and Ihor Surkis, dated January 20,
2010.
|
Exhibit
Number
|
Description
|
|
Facility
Agreement among
CET 21 spol. s r.o.,
Erste Group Bank A.G. as arranger, Česká Spořitelna, a.s. (“
CSAS
”) as facility agent and security
agent, CSAS, UniCredit Bank Czech Republic, a.s. and BNP Paribas as
original lenders and the Company, CME Slovak Holdings B.V., CME Media
Enterprises B.V., CME Romania B.V. and Markiza-Slovakia, spol. s r.o. as
original guarantors, dated December 21, 2009.
|
||
Investor
Rights Agreement among the Company, Ronald S. Lauder, RSL Savannah LLC,
RSL Investment LLC, RSL Investments Corporation and Time Warner Media
Holdings B.V., dated May 18, 2009.
|
||
Irrevocable
Voting Deed and Corporate Representative Appointment among RSL Savannah
LLC, Time Warner Media Holdings B.V. and the Company, dated May 18,
2009.
|
||
Contract
of Employment between CME Media Services Limited and Dave Sturgeon, dated
June 19, 2009.
|
||
List
of subsidiaries.
|
||
Consent
of Deloitte LLP.
|
||
Certification
of Principal Executive Officer pursuant to Exchange Act Rules 13a-14(a)
and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.
|
||
Certification
of Principal Financial Officer pursuant to Exchange Act Rules 13a-14(a)
and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.
|
||
Certifications
of Principal Executive Officer and Principal Financial Officer pursuant to
18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002 (furnished
only).
|
*
|
Previously
filed exhibits
|
+
|
Exhibit
is a management contract or compensatory
plan
|
b)
|
Exhibits:
See (a)(3) above for a listing of the exhibits included as part of this
report.
|
c)
|
Report
of Independent Registered Public Accountants on Schedule II - Schedule of
Valuation Allowances. (See page S-1 of this Annual Report on
Form 10-K.)
|
Date: February
24, 2010
|
/s/ Adrian Sarbu
|
||
Adrian
Sarbu
|
|||
President
and Chief Executive Officer
|
Signature
|
Title
|
Date
|
||
/s/
Ronald S. Lauder
|
Chairman
of the Board of Directors
|
February
24, 2010
|
||
Ronald
S. Lauder
|
||||
/s/
Herbert A. Granath
|
Vice-Chairman
of the Board of Directors
|
February
24, 2010
|
||
Herbert
A. Granath
|
||||
/s/
Adrian Sarbu
|
President
and Chief Executive Officer
|
February
24, 2010
|
||
Adrian
Sarbu
|
and
Director (Principal Executive Officer)
|
|||
/s/
Charles Frank
|
Chief
Financial Officer
|
February
24, 2010
|
||
Charles
Frank
|
(Principal
Financial Officer)
|
|||
/s/
David Sturgeon
|
Deputy
Chief Financial Officer
|
February
24, 2010
|
||
David
Sturgeon
|
(Principal
Accounting Officer)
|
|||
/s/
Paul T. Cappuccio
|
Director
|
February
23, 2010
|
||
Paul
T. Cappuccio
|
||||
/s/
Michael Del Nin
|
Director
|
February
23, 2010
|
||
Michael
Del Nin
|
||||
/s/
Igor Kolomoisky
|
Director
|
February
24, 2010
|
||
Igor
Kolomoisky
|
||||
/s/
Alfred W. Langer
|
Director
|
February
24, 2010
|
||
Alfred
W. Langer
|
||||
/s/
Fred H. Langhammer
|
Director
|
February
24, 2010
|
||
Fred
H. Langhammer
|
||||
/s/
Bruce Maggin
|
Director
|
February
24, 2010
|
||
Bruce
Maggin
|
||||
/s/
Parm Sandhu
|
Director
|
February
24, 2010
|
||
Parm
Sandhu
|
||||
/s/
Caryn Seidman Becker
|
Director
|
February
24, 2010
|
||
Caryn
Seidman Becker
|
||||
/s/
Duco Sickinghe
|
Director
|
February
24, 2010
|
||
Duco
Sickinghe
|
||||
|
Director
|
|
||
Eric
Zinterhofer
|
S-1
|
Bad
debt and credit note provision
|
Deferred
tax allowance
|
|||
Balance
at December 31, 2006
|
12,640
|
15,885
|
||
Charged
to costs and expenses
|
1,852
|
9,803
|
||
Charged
to other accounts (1)
|
(602)
|
2,000
|
||
Foreign
exchange
|
691
|
1,208
|
||
Balance
at December 31, 2007
|
14,581
|
28,896
|
||
Charged
to costs and expenses
|
2,541
|
7,192
|
||
Charged
to other accounts (1)
|
(2,021)
|
11,880
|
||
Foreign
exchange
|
(385)
|
(576)
|
||
Balance
at December 31, 2008
|
14,716
|
47,392
|
||
Charged
to costs and expenses
|
10,419
|
(11,350)
|
||
Charged
to other accounts (1)
|
(6,571)
|
29,762
|
||
Foreign
exchange
|
(5)
|
(93)
|
||
Balance
at December 31, 2009
|
18,559
|
65,711
|
CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD.
|
|||
By
|
/s/ Charles Frank
|
||
Name:
|
Charles
Frank
|
||
Title:
|
Chief
Financial Officer
|
/s/
Meredith Steinhaus
|
CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD.
|
|||
By:
|
/s/
Charles Frank
|
|
|
Name:
|
Charles
Frank
|
||
Title:
|
Chief
Financial Officer
|
Attest:
|
|
/s/ Meredith Steinhaus
|
CENTRAL
EUROPEAN MEDIA
|
||
ENTERPRISES
LTD.
|
||
By:
|
/s/ Wallace Macmillan
|
|
Name:
Wallace Macmillan
|
||
Title: Chief
Financial Officer
|
TIME
WARNER MEDIA HOLDINGS B.V.
|
||
By:
|
/s/ Stephen N. Kapner
|
|
Name:
Stephen N. Kapner
|
||
Title: Director
|
(1)
|
CME PRODUCTION B.V.
, a
company organized under the laws of the Netherlands, registered under
number 34349555 with the Trade Register and having its registered office
at Dam 5B, Amsterdam JS 1012, the Netherlands (the "
Purchaser
");
|
(2)
|
CME ROMANIA B.V.
, a
company organized under the laws of the Netherlands, registered under
number 33289326 with the Trade Register and having its registered office
at Dam 5B, Amsterdam JS 1012, the Netherlands ("
CME
Romania
");
|
(3)
|
MEDIA PRO MANAGEMENT
S.A.
, a Romanian legal person, registered under the number
J40/4177/2001 with the Register of Commerce from Bucharest, CUI 13848658
and having its registered office at 109 Pache Protopopescu Blv., 6th
Floor, sector 2, Bucharest, Romania ("
Media Pro
Management
");
|
(4)
|
MEDIAPRO B.V.
, a company
organized under the laws of Netherlands, with registered number 33288103
and having its registered office at Teleport Boulevard 140, 1043EJ, 1000
CV, Amsterdam, Netherlands ("
MP BV
");
and
|
(5)
|
ADRIAN SARBU
, of 4A
Modrogan Street, Sc. A, Et. 5, Apt. 15, Section 1, Bucharest, Romania, as
guarantor (the "
Guarantor
"),
|
(A)
|
The
Parties referred to above entered into a Framework Agreement, dated 27
July 2009.
|
(B)
|
Media
Pro Management and MP BV own,
inter alia
, interests
in a number of entities more particularly described in Recitals
(C) and
(D)
below that comprise the entertainment division of the Media Pro
Group.
|
(C)
|
As
of the date of this Deed, following the recapitalization of certain
Shareholder Loans after the Execution Date of the Framework Agreement,
Media Pro Management owns:
|
|
(i)
|
7,052,569
registered shares of Media Pro Pictures S.A. (which represents a 70.1651%
Ownership Interest), which in turn
owns:
|
|
(a)
|
50
shares of Media Pro Distribution S.R.L. (which represents a 1.0625%
Ownership Interest);
|
|
(b)
|
11,832,361
shares of Studiourile Media Pro S.A. (which represents a 81.4715%
Ownership Interest); and
|
|
(c)
|
1,020
shares of Domino Production S.R.L. (which represents a 51% Ownership
Interest);
|
|
(ii)
|
4,656
registered shares of Media Pro Distribution S.R.L. (which represents a
98.9375% Ownership Interest);
|
|
(iii)
|
a
100% Ownership Interest in Media Pro Pictures s.r.o. (which corresponds to
the investment contribution to the registered capital of Media Pro
Pictures s.r.o. in the amount of CZK 79,938,000), which in turn
owns:
|
|
(a)
|
a
51% Ownership Interest in Zmena s.r.o. (which corresponds to the
investment contribution of CZK 102,000 to the registered capital of CZK
200,000);
|
|
(b)
|
a
51% Ownership Interest in Takova normalni rodinka s.r.o. (which
corresponds to the investment contribution of CZK 102,000 to the
registered capital of CZK 200,000);
|
|
(iv)
|
508,387
registered shares of Pro Video S.R.L. (which represents a 99.9843%
Ownership Interest), which in turn
owns:
|
|
(a)
|
400
shares of Hollywood Multiplex Operation S.R.L. (which represents a 100%
Ownership Interest); and
|
|
(b)
|
8
shares of Media Pro Music and Entertainment S.R.L. (which represents a 40%
Ownership Interest); and
|
|
(v)
|
12
registered shares of Media Pro Music and Entertainment S.R.L. (which
represents a 60% Ownership
Interest).
|
(D)
|
As
of the date of this Deed, following the recapitalization of certain
Shareholder Loans after the Execution Date of the Framework Agreement, MP
BV owns:
|
|
(i)
|
2,998,818
shares of Media Pro Pictures S.A. (which represents a 29.8349% Ownership
Interest); and
|
|
(ii)
|
80
shares of Pro Video S.R.L. (which represents a 0.0157% Ownership
Interest).
|
(E)
|
With
effect from and including 9 December 2009, the Parties wish to amend the
Framework Agreement as set out in this
Deed.
|
(F)
|
Accordingly,
the Parties now wish to enter this
Deed.
|
1.
|
Definitions
and Interpretation
|
1.1
|
The
following definitions apply in this
Agreement:
|
"
Framework
Agreement
"
|
means
a framework agreement between CME Production B.V.; CME Romania B.V.; Media
Pro Management S.A.; Media Pro B.V.; and Adrian Sarbu, dated 27 July
2009.
|
1.2
|
In
construing this Agreement, unless otherwise
specified:
|
|
1.2.1
|
references
to Clauses are to Clauses of, this
Deed;
|
|
1.2.2
|
references
to a "
person
"
shall be construed so as to include any physical or legal person, firm,
company or other body corporate, government, state or agency of a
Governmental Authority or any joint venture, association or partnership
(whether or not having separate legal
personality);
|
|
1.2.3
|
words
in the singular include the plural and in the plural include the singular,
and a reference to one gender includes a reference to the other
gender;
|
|
1.2.4
|
a
reference to any law, regulation, statute or statutory provision shall be
construed as a reference to the same as it may have been, or may from time
to time be, amended, modified or
re-enacted;
|
|
1.2.5
|
any
reference to a "
day
" (including within
the phrase "
Business
Day
") shall mean a period of 24 hours running from midnight to
midnight (except for the days of time change lasting 25 or 23 hours which
days shall be 25 or 23 hours
respectively);
|
|
1.2.6
|
references
to time are to Greenwich Mean Time;
|
|
1.2.7
|
a
reference to any other document referred to in this Deed is a reference to
that other document as amended, varied, novated or supplemented (other
than in breach of the provisions of this Deed) from time to
time;
|
|
1.2.8
|
headings,
sub-headings, recitals and titles are for convenience only and do not
affect the interpretation of this
Deed;
|
|
1.2.9
|
references
to documents being in writing shall not include
e-mail;
|
|
1.2.10
|
general
words shall not be given a restrictive meaning by reason of the fact that
they are followed by particular examples intended to be embraced by the
general words;
|
|
1.2.11
|
the
words "
include
",
"
includes
", "
including
" and "
in particular
" shall be
deemed in each case to be followed by the words "
without
limitation
";
|
|
1.2.12
|
all
obligations and liabilities on the part of the Sellers are joint and
several and shall be construed accordingly;
and
|
|
1.2.13
|
references
to a "
Party
" or
the "
Parties
"
shall be construed as to include each of its permitted successors and
permitted assignees.
|
1.3
|
Capitalised
terms used in this Deed but not defined herein shall have the meanings
ascribed thereto in the Framework
Agreement.
|
2.
|
Amendments
|
2.1
|
The
following shall be inserted into Clause 1.1 of the Framework
Agreement:
|
|
"
Dutch
Shares
"
|
shall
have the meaning set out in Clause
2.2.4;
|
|
"
Dutch and Romanian
Shares
"
|
shall
have the meaning set out in Clause
2.2.5;
|
|
"
Romanian
Shares
"
|
Shall
have the meaning set out in Clause
2.2.5;
|
2.2
|
Clause
2.1 of the Framework Agreement shall be replaced with the
following:
|
|
"2.1
|
Subject
to the terms and conditions herein, including the satisfaction of the
Conditions Precedent, the Sellers agree to sell, and the Purchaser
(relying on, amongst other things, the Warranties and undertakings in this
Agreement) agrees to purchase, the Sale Securities with full title
guarantee and the Intellectual Property in each case free from all
Encumbrances and together with all rights and entitlements now or
hereafter attaching thereto. In addition, also subject to the
terms and conditions herein, including the satisfaction of the Conditions
Precedent, CME Romania hereby sells, and the Purchaser hereby, subject to
the same terms and conditions, purchases the Dutch Shares together with
all rights and entitlements now or hereafter attaching
thereto"
|
2.3
|
Clause
2.2 of the Framework Agreement shall be replaced with the
following:
|
|
2.2
|
The
consideration for the purchase by the Purchaser of the Sale Securities and
the Dutch Shares, as adjusted in accordance with Clause 2.3 (as so
adjusted, the "
Purchase
Consideration
") shall be apportioned as
follows:
|
|
2.2.1
|
the
payment of ten million US Dollars (US$10,000,000) in cash (the "
Cash
Consideration
");
|
|
2.2.2
|
the
issuance to the Sellers of two million two hundred thousand (2,200,000)
Class A Common Shares in CME (the "
Consideration
Shares
");
|
|
2.2.3
|
the
issuance to the Sellers of the Warrant;
and
|
|
2.2.4
|
the
procurement of the transfer by CME Romania to the Guarantor (as designee
of the Purchaser, which designation the Guarantor hereby accepts) of CME
Romania's 10% Ownership Interest in MP BV (the "
Dutch
Shares
");
|
|
2.2.5
|
the
procurement of the transfer by CME Romania to the Guarantor of CME
Romania's 8.7% Ownership Interest in Media Pro Management (the "
Romanian Shares
", and
together with the Dutch Shares, the "
Dutch and Romanian
Shares
").
|
2.4
|
Clause
4.6 of the Framework Agreement shall be replaced with the
following:
|
|
"4.6
|
On
the Closing Date, the Sellers shall deliver or shall procure the delivery
to the Purchaser of:
|
|
4.6.1
(i)
|
all
necessary instruments of transfer for each Target Company in respect of
the Sale Securities, including without limitation, the MPP Czech Transfer
Agreement and the MPE Romanian Transfer Agreements (governed by the law of
the relevant jurisdiction applicable to such transfer), duly executed and
completed by the corresponding Seller in favour of the Purchaser (or in
favour of any Affiliate of the Purchaser as the Purchaser shall direct in
writing to the applicable Seller in respect of some or all of the Sale
Securities), together with the applicable resolutions adopted pursuant to
Clause 4.7;
|
|
(ii)
|
any
and all duly executed powers of attorney or other authorities under which
any of the instruments of transfer have been executed;
and
|
|
(iii)
|
further
to Clauses 3.1.2 and 3.1.3, certified copies of all other necessary
authorizations, waivers and consents in respect of the sale of the MPM
Securities and MP BV Securities and the execution of the instruments of
transfer in respect of them;
|
|
4.6.2
|
a
closing certificate in the form attached hereto in Schedule 2 and, if
reasonably requested by the Purchaser, other confirmations or evidence of
the satisfaction of the Conditions
Precedent;
|
|
4.6.3
|
a
certified copy of the updated registers of Ownership Interests of each
of:
|
|
(i)
|
MPP
evidencing its 10% Ownership Interest in
MPD;
|
|
(ii)
|
MPP
evidencing its 81.47% Ownership Interest in
MPS;
|
|
(iii)
|
MPP
evidencing its 51% Ownership Interest in
Domino;
|
|
(iv)
|
Pro
Video evidencing its 40% Ownership Interest in
MPME;
|
|
(v)
|
Pro
Video evidencing its 100% Ownership Interest in
HMO;
|
|
(vi)
|
MPP
Czech evidencing its 51% Ownership Interest in
Rodinka;
|
|
(vii)
|
MPP
Czech evidencing its 51% Ownership Interest in
Zmena,
|
|
4.6.4
|
one
(1) counterpart of each of the Trademark Assignments signed by the
Guarantor and Media Pro Music & Events SRL (as
applicable);
|
|
4.6.5
|
one
(1) counterpart of the Business Name Assignment signed by the Sellers and
the Guarantor;
|
|
4.6.6
|
one
(1) counterpart of the Subscription Agreement duly executed by the
Sellers;
|
|
4.6.7
|
the
Supplementary Disclosure Schedule, if
any;
|
|
4.6.8
|
written
resignations of each of the directors and statutory executives of any
Target Company designated by the Purchaser to the Sellers at least five
(5) days before the Closing Date to take effect on the Closing Date, in a
form satisfactory to the Purchaser;
|
|
4.6.9
|
signed
notices of termination from each of Media Pro Management and MP BV with
regard to any contracts, agreements or arrangements for the provision of
management, consulting or similar services by Media Pro Management or MP
BV to any of the Target Companies, effective as of the Closing Date,
except: (i) in relation to the Permitted Contracts; or (ii) where the
terms of any extension of such agreements or arrangements are approved by
the Board of Directors of CME prior to entry into such extension;
and
|
|
4.6.10
|
a
copy of the signed transfer instruments illustrating the transfer
by:
|
|
(i)
|
MPS
of all its Ownership Interests in Eurofilm Art SRL to a third
party;
|
|
(ii)
|
Media
Pro Pictures SA of all its Ownership Interests in General Prod SRL to a
third party; and
|
|
(iii)
|
Media
Pro Pictures SA of all its Ownership Interests in Domino Film SRL to a
third party."
|
2.5
|
Clause
4.9.1 shall be replaced with the
following:
|
|
"4.9.1
|
all
necessary instruments of transfer (governed by the law of the relevant
jurisdiction applicable to such transfer) in respect of the transfer of
its 8.7% Ownership Interest in Media Pro Management, duly executed and
completed by CME Romania in favour of the Guarantor or a party designated
by it, and any and all duly executed powers of attorney and all other
necessary authorizations, waivers and consents in respect of the transfer
by CME Romania in favour of the Guarantor of its 10% Ownership Interest in
MP BV."
|
2.6
|
Clause
5.1.4 of the Framework Agreement shall be replaced with the
following:
|
|
"5.1.4 not
dispose of or grant any option or right of pre-emption in respect of any
part of their assets, including, without limitation, the Ownership
Interests in the Media Pro Entertainment Business;
provided, however, that
the Purchaser acknowledges that the Sellers may in their
absolute discretion cause MPP and MPS to transfer the Ownership Interests
the Sellers have in the companies set out in Clause 4.6.10 prior to the
Closing Date. For the avoidance of doubt, such transfer shall not
constitute a breach of this Agreement, nor shall such transfers affect in
any way the other rights or obligations the Sellers have under this
Agreement;"
|
2.7
|
Clause
5.3 shall be replaced with the
following:
|
|
"5.3
|
CME
Romania shall not, from and including the Execution Date up to and
including the Closing Date, dispose of or grant any option or right of
pre-emption or any other Encumbrance in respect of any of the Dutch and
Romanian Shares, provided that, as soon as all Conditions Precedent and
other conditions to Closing, other than the payment of the consideration
referred to in Clause 2.2.4, have been satisfied or waived, CME Romania,
the Guarantor and MP BV shall effect the transfer of the Dutch Shares by
CME Romania to the Guarantor by execution the required notarial deed of
transfer to that effect."
|
2.8
|
Clause
7.3 shall be replaced with the
following:
|
|
"7.3
|
The
Sellers covenant with the Purchaser that they shall not, and procure that
their Affiliates shall not, for a period of three (3) years from the date
of this Agreement and without the prior written consent of the
Purchaser:
|
|
(i)
|
within
any territory in which CME or its Affiliates is operating or intends to
operate during such period:
|
|
(a)
|
compete
directly or indirectly with the Media Pro Entertainment
Business;
|
|
(b)
|
enter
directly or indirectly into negotiations, or enter into any contractual or
other business arrangement with any third party to offer services that may
compete with the Media Pro Entertainment
Business;
|
|
(c)
|
directly
or indirectly own, manage, operate, participate in, consult with or work
for any business which is engaged in the same business as the Media Pro
Entertainment Business;
|
|
(d)
|
attempt
to induce, entice or solicit any current consignors, suppliers,
contractors, consultants or customers away, in whole of part, from the
Purchaser; or interfere or attempt to interfere with relations between the
Purchaser and such consignors, suppliers, contractors, consultants or
customers; and
|
|
(e)
|
do
or say anything which is harmful to the goodwill of the Media Pro
Entertainment Business which may lead a person who has dealt with any of
the Target Companies at any time during the twenty-four (24) months prior
to the date of this Agreement to cease to deal with the Target Companies
on substantially equivalent terms to those previously offered or at all;
and
|
|
(ii)
|
hire,
make an offer, solicit, recruit or otherwise endeavour to entice away from
the Purchaser, its Affiliates or any of the Target Companies or their
Affiliates any person who is a director, officer or employee of the
Purchaser, its Affiliates or any of the Target Companies or their
Affiliates, whether or not such person would commit a breach of contract
by reason of leaving service,
|
2.10
|
Paragraph
5.12 of Part B of Schedule 3 shall be replaced with the
following:
|
|
"5.12
|
except
for the contracts set forth in paragraph 5.12 of Schedule 4, no Target
Company has granted any participation rights owned by any Target Company
to any third party;"
|
2.11
|
The
following new paragraph 11.6 of Part B of Schedule 3 shall be
inserted:
|
|
"11.6
|
all
loans described in Schedule 7 have been converted into
equity."
|
3.
|
General
|
/s/
Gerben van den Berg
|
||
Pan-Invest B.V., represented by Gerben van den Berg |
Authorised
signatory
|
|
/s/ A.N.G.V. Spaendonck | ||
Authorised
signatory
|
/s/
Gerben van den Berg
|
||
Pan-Invest B.V., represented by Gerben van den Berg |
Authorised
signatory
|
/s/
Gheorghe Liviu
|
|
Authorised
signatory
|
/s/ Liliana Seastrom | |
Authorised
signatory
|
EXECUTED
as a
DEED
|
)
|
|
by
ADRIAN
SARBU
|
)
|
/s/Adrian Sarbu
|
in
the presence of
|
)
|
|
)
|
CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD.
|
||
By:
|
/s/ Charles Frank
|
|
Name:
|
Charles
Frank
|
|
Title:
|
Chief
Financial Officer
|
SUBSCRIBERS:
|
|
MEDIA
PRO MANAGEMENT S.A.
|
|
By:
|
/s/ Gheorghe Liviu
|
Name:
|
Gheorgie
Liviu
|
Title:
|
Managing
Director
|
MEDIA
PRO B.V.
|
|
By:
|
/s/ Liliana Seastrom
|
Name:
|
Liliana
Seastrom
|
Title:
|
Clause
|
Page
|
|
1.
|
Definitions
and Interpretation
|
2
|
2.
|
Sale
and Purchase
|
10
|
3.
|
Warranties
|
15
|
4.
|
Certain
Covenants
|
15
|
5.
|
Termination;
Termination Amount
|
21
|
6.
|
Indemnities
and Liabilities
|
22
|
7.
|
Controlling
Parties; Guarantee
|
25
|
8.
|
Confidentiality
|
27
|
9.
|
Assignment
|
28
|
10.
|
Miscellaneous
|
28
|
11.
|
Governing
Law and Arbitration
|
30
|
|
1.
|
Harley Trading
Limited,
a company organized and existing under the Laws
of Belize, with its registered address at 35 Barrack Road,
Belize City, Belize, registration number 57,747 ("
Buyer
");
|
|
2.
|
Igor Valeryevich
Kolomoisky
, a citizen of Israel residing at St. Galey Thelet 48,
Herzeliya, Israel, 46640, passport No. 10905729, issued on 2 October 2005
("
Kolomoisky
", and
together with Buyer, the
"
Buyer
Parties
");
|
|
3.
|
Central European Media
Enterprises Ltd
., a company organized under the Laws of Bermuda
with its registered address at Mintflower Place, 4
th
Floor, 8 Par-La-Ville Road, Hamilton, Bermuda ("
Seller
");
and
|
|
4.
|
CME Cyprus Holding II
Limited
, a wholly-owned subsidiary of Seller and a limited
liability company organized and existing under the Laws of Cyprus,
identification code 256396, located at Arch. Makariou III, 195, Neocleous
House, P.C. 3030, Limassol, the Republic of Cyprus (the "
Company
", and together
with Seller, the "
Seller
Parties
"),
|
(A)
|
Seller
is the sole Beneficial Owner of 100% of the issued share capital of the
Company and is the indirect owner of the Studio 1+1 and Kino Group (as
defined below).
|
(B)
|
The
Company is the direct or indirect owner of 100% of the ownership interests
of each of (
i
) Studio 1+1
LLC, a limited liability company organized and existing under the Laws of
Ukraine identification code 23729809 ("
Studio 1+1
"), (
ii
) Gravis-Kino
LLC, a limited liability company organized and existing under the Laws of
Ukraine identification code 36257228 ("
Gravis
"), (
iii
) TOR LLC, a
limited liability company organized and existing under the Laws of Ukraine
identification code 19384641 ("
TOR
"), (
iv
) ZHYSA LLC,
a limited liability company organized and existing under the Laws of
Ukraine identification code 20727448 ("
ZHYSA
"), (
v
) TV Stimul
identification code 30462482 ("
Stimul
"), a limited
liability company organized and existing under the Laws of Ukraine, (
vi
)
Ukrpromtorg-2003 LLC identification code 32426708 ("
Ukrpromtorg
"), a limited
liability company organized and existing under the Laws of Ukraine, (
vii
) Ukrainian
Media Services LLC, a limited liability company organized and existing
under the Laws of Ukraine identification code 33600071 ("
UMS
"), (
viii
) 1+1
Production LLC, a limited liability company organized and existing under
the Laws of Ukraine identification code 23389360 ("
1+1 Production
"), (
ix
) TV Media
Planet Limited, a limited liability company organized and existing under
the Laws of Cyprus identification code 155804 ("
TV Media Planet
"),
(
x
)
International Media Services Ltd., a company limited by shares organized
and existing under the Laws of Bermuda identification code EC22571 ("
IMS
"), (
xi
) Innova Film
GmbH, a limited liability company organized and existing under the Laws of
Germany identification code HRB 27705 ("
Innova Film
"), (
xii
) Grintwood
Investments Limited, a limited liability company organized and existing
under the Laws of Cyprus identification code 226117 ("
Grintwood
"), and (
xiii
) Grizard
Investments Limited, a limited liability company organized and existing
under the Laws of Cyprus identification code 226142 ("
Grizard
"), (xiv) CME
Ukraine Holding II B.V., a limited liability company organized and
existing under the Laws of the Netherlands identification code 34362824
("
Ukraine Holding
II
"), (xv) CME Cyprus Holding Limited, a limited liability company
organized and existing under the Laws of Cyprus identification code 155308
("
CME Cyprus
", and
together with Studio 1+1, Gravis, TOR, ZHYSA, Stimul, Ukrpromtorg, UMS,
1+1 Production, TV Media Planet, IMS, Innova Film, Grintwood, Grizard and
Ukraine Holding II, the "
Studio 1+1 and Kino
Group
"), which companies conduct television, broadcasting, media
production and advertising business in Ukraine. The Studio 1+1
and Kino Group corporate structure is set out in Schedule
6.
|
(C)
|
Kolomoisky
is the sole Beneficial Owner (as defined below) of 100% of the issued
share capital of Buyer.
|
(D)
|
Kolomoisky
and Seller,
inter
alios
, entered into the Framework Agreement, dated 2 July 2009 and
the First Amended and Restated Framework Agreement, dated 22 July 2009
(the "
Amended Framework
Agreement
"), with the intention to form a joint venture to conduct
television business in Ukraine on the basis of the Company and its
Subsidiaries (as defined below).
|
(E)
|
Immediately
preceding entry into this Agreement, all of the parties to the Amended
Framework Agreement, including,
inter alios
, Seller and
Kolomoisky, entered into an agreement terminating the Amended Framework
Agreement in accordance with its terms and without any effect for any of
the parties thereto.
|
(F)
|
Seller
now desires to sell to Buyer, and Buyer desires to purchase from Seller,
all of the Closing Date Inter-Company Debt and the Shares (as defined
below) on the terms and conditions set forth in this
Agreement.
|
|
(a)
|
when
a reference is made in this Agreement to a Clause, Exhibit or Schedule,
such reference is to a Clause of, or an Exhibit or Schedule to, this
Agreement, unless otherwise
indicated;
|
|
(b)
|
the
table of contents and headings for this Agreement are for reference
purposes only and do not affect in any way the meaning or interpretation
of this Agreement;
|
|
(c)
|
whenever
the words "include," "includes," or "including" are used in this
Agreement, they are deemed to be followed by the words "without
limitation";
|
|
(d)
|
a
reference to "US Dollar" or "US $" means the lawful currency of the United
States of America;
|
|
(e)
|
a
reference to "EURO" or "EUR" means the lawful currency of the European
Union;
|
|
(f)
|
the
words "hereof," "herein," and "hereunder" and words of similar import,
when used in this Agreement, refer to this Agreement as a whole and not to
any particular provision of this
Agreement;
|
|
(g)
|
all
terms defined in this Agreement have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto, unless
otherwise defined therein;
|
|
(h)
|
references
in the singular shall include references in the plural and vice versa,
words denoting any gender shall include any other gender and words
denoting natural persons shall include any other
Persons;
|
|
(i)
|
references
to a Person are also to its successors and permitted
assigns;
|
|
(j)
|
references
to this Agreement and/or any other agreement are deemed to be references
to such agreement, as amended, modified or supplemented from time to
time;
|
|
(k)
|
references
to "shares" shall be deemed to include any type of ownership interest
applicable to a Person under the Laws of the jurisdiction of incorporation
of such Person; and
|
|
(l)
|
the
use of "or" is not intended to be exclusive unless expressly indicated
otherwise.
|
|
(a)
|
Seller
shall sell, and Buyer shall purchase, the Shares for the Share Purchase
Price;
|
|
(b)
|
Seller
and certain Non-Company Affiliates shall assign to Buyer the Closing Date
Inter-Company Debt for an aggregate price equal to the aggregate amount of
the Closing Date Inter-Company Debt (the "
Inter-Company Debt Purchase
Price
"); and
|
|
(c)
|
Buyer
and Seller agree that the Adjusted Aggregate Consideration in respect of
the aggregate amount of the Inter-Company Debt Purchase Price and the
Share Purchase Price shall be payable in accordance with Clauses 2.4 and
2.3(b) hereof.
|
|
(a)
|
General
conditions precedent to the performance by the Parties of their respective
obligations on the Closing Date:
|
|
(i)
|
Buyer
shall have received all required antimonopoly or merger control approvals
or consents so required on or prior to the Closing Date, in accordance
with all applicable Laws, and no such approvals or consents shall have
been revoked;
|
|
(ii)
|
all
of the material broadcasting licenses of the Studio 1+1 and Kino Group
Entities shall remain in full force and effect and shall not have been
revoked;
|
|
(iii)
|
no
Governmental Authority shall have notified any Party of its intention to
commence, or recommend the commencement of, Litigation and no Law shall
have been enacted, entered, enforced, promulgated or issued with respect
to or deemed applicable, which in any case seeks or purports to challenge,
prohibit, materially interfere with, materially limit, delay, restrain,
impose damages or other material obligations in connection with the
consummation of the transactions contemplated by this Agreement and the
other Transaction Documents; and
|
|
(iv)
|
consummation
of the transactions contemplated hereby and by the other Transaction
Documents shall not have been restrained, enjoined or otherwise prohibited
or made illegal by any applicable Law, including any court order, and no
such Law or order that would have such an effect shall have been
promulgated, entered, issued or determined by any court or other
Governmental Authority to be applicable to this Agreement or any other
Transaction Document.
|
|
(b)
|
Conditions
precedent to the performance by the Company and Seller of their respective
obligations on the Closing Date:
|
|
(i)
|
there
shall have been no material breach of any Buyer Warranty or Kolomoisky
Warranty, in each case at and as of the date when first given and at and
as of the Closing Date with the same effect as though made at and as of
the Closing Date, it being understood that, for purposes of determining
the accuracy of any such Warranty, all monetary thresholds and other
materiality qualifications set forth in such Warranty shall be
disregarded. Each of Kolomoisky and Buyer shall have in all
material respects duly performed and complied with all agreements,
covenants and conditions required by this Agreement to be performed or
complied with by it at or prior to Closing. Buyer shall have
delivered to each of Seller and the Company a certificate, dated the
Closing Date and signed by a duly authorized officer to the effect set
forth above in this
Clause 2.2(b)(i);
|
|
(ii)
|
Seller
shall have received the full amount of the Pre-Closing Payment from Buyer
in the Designated Account in accordance with Clause 2.4(b), and such
receipt shall not have been challenged or enjoined by any legal, judicial,
regulatory or governmental process;
and
|
|
(iii)
|
each
of Kolomoisky and Buyer shall have executed all of the Closing Date
Documents to which it is a party and such Closing Date Documents shall be
ready for exchange at Closing.
|
|
(c)
|
Conditions
precedent to the performance by Buyer of its obligations on the Closing
Date:
|
|
(i)
|
there
shall have been no material breach of any Seller Warranty, Company
Warranty or Fundamental Studio 1+1 and Kino Group Warranty and no material
breach of any other Studio 1+1 and Kino Group Warranty, in each case at
and as of the date when first given and at and as of the Closing Date with
the same effect as though made at and as of the Closing Date, it being
understood that, for purposes of determining the accuracy of any such
Warranty, all monetary thresholds and other materiality qualifications set
forth in such Warranty shall be disregarded. Each of Seller and
the Company shall have in all material respects duly performed and
complied with all agreements, covenants and conditions required by this
Agreement to be performed or complied with by it at or prior to
Closing. Each of Seller and the Company shall have delivered to
Buyer a certificate, dated the Closing Date and signed by a duly
authorized officer to the effect set forth above in this
Clause 2.2(c)(i);
|
|
(ii)
|
Seller
shall have delivered to Buyer the Pre-Closing Accounting Notice in
accordance with Clause 4.3(d);
|
|
(iii)
|
no
event, occurrence, fact, condition, change, development or effect shall
exist or have occurred or come to exist or been threatened in respect of
any of the Company or any Studio 1+1 and Kino Group Entity since the date
of this Agreement that, individually or in the aggregate, has resulted in
or would reasonably be expected to result in a Material Adverse Effect;
and
|
|
(iv)
|
each
of Seller and the Company shall have executed all of the Closing Date
Documents to which it is a party and such Closing Date Documents shall be
ready for exchange at the Closing.
|
|
(a)
|
each
of Buyer, Seller, and the Company shall execute a letter agreement (the
"
Closing
Memorandum
") confirming
that:
|
|
(i)
|
all
of the conditions precedent applicable to it set forth in Clause 2.2 are
satisfied or waived;
|
|
(ii)
|
the
Pre-Closing Accounting Notice has been duly delivered by Seller and is
accepted by Buyer in accordance with Clause 4.3(d);
and
|
|
(iii)
|
it
is satisfied with the Buyer Parties' Deliverables or Seller Parties'
Deliverables (as the case may be) delivered to
it;
|
|
(b)
|
following
execution of the Closing Memorandum pursuant to Clause 2.3(a), Buyer shall
deliver to Seller, by wire transfer of immediately available funds to the
Designated Account, the Closing Date Payment calculated in accordance with
Clause 2.4(a) on the basis of the amounts set forth in the Pre-Closing
Accounting Notice; and
|
|
(c)
|
following
transfer of the funds pursuant to Clause 2.3(b), the following shall
occur:
|
|
(i)
|
each
of Seller and Buyer shall execute, or if applicable shall cause any of
their respective Affiliates to execute, all relevant Assignment Agreements
in respect of the Closing Date Inter-Company Debt, and Seller shall
deliver to Buyer any instruments and documents representing or evidencing
all of their respective rights in the Closing Date Inter-Company Debt.
Physical delivery of such instruments and documents shall take place at
the offices of the Company.
|
|
(ii)
|
Seller
shall deliver to Buyer, free and clear of any Liens, one or more
certificates representing all of the Shares, duly endorsed in blank or
accompanied by stock powers or other instruments of transfer duly executed
in blank, and bearing or accompanied by all requisite stock transfer
stamps;
|
|
(iii)
|
the
Buyer Parties shall deliver to the Seller Parties the Buyer Parties'
Deliverables; and
|
|
(iv)
|
the
Seller Parties shall deliver to the Buyer Parties the Seller Parties'
Deliverables.
|
|
(a)
|
Buyer
shall pay the Adjusted Aggregate Consideration in two (2)
payments. The first payment shall be made in the amount of
US$30,000,000 (the "
Pre-Closing Payment
") on
the Pre-Closing Payment Date, and the second payment shall be made on the
Closing Date in an amount calculated in accordance with this Clause 2.4(a)
(the "
Closing Date
Payment
"), in all cases in accordance with Clause 2.4(b) below. The
amount of the Closing Date Payment shall equal the Adjusted Aggregate
Consideration
minus
the amount of the Pre-Closing Payment received in the Designated
Account
minus
the
amount of any Earned Interest. For the avoidance of doubt, Seller shall
retain the amount of all Earned Interest after
Closing.
|
|
(b)
|
The
Pre-Closing Payment shall be made by wire transfer of immediately
available funds on 1 February 2010 (the "
Pre-Closing Payment
Date
") and the Closing Date Payment shall be made by wire transfer
of immediately available funds on the Closing Date, in each case into an
account of Seller designated for such purpose by Seller (the "
Designated Account
"),
provided
that Seller shall have no obligation to transfer any interest in or
Control of the Company or the Shares to Buyer until the Adjusted Aggregate
Consideration has been paid in full in accordance with this
Agreement.
|
|
(c)
|
Seller
shall make available for Buyer's review copies of the documents listed in
Schedule 5 at least three (3) Business Days prior to the Closing Date
other than those documents which will not be produced until the Closing
Date (e.g., item (s)).
|
|
(d)
|
Seller
hereby covenants not to withdraw any funds in respect of the Pre-Closing
Payment from the Designated Account until the Closing Date other than to
pay or fund any Pre-Closing Expenses made in accordance with this
Agreement.
|
|
(a)
|
The
Parties intend that Closing Date shall be the Anticipated Closing
Date. Each of the Parties shall use its reasonable best efforts
to ensure that all of the conditions set out in Clause 2.2 are satisfied
on or prior to such date.
|
|
(b)
|
In
the event that any of the conditions set out in Clause 2.2 have not been
fulfilled by the Long Stop Date, any Party shall be entitled to terminate
this Agreement by written notice to the other Parties, provided that such
non-fulfillment of any condition was not the direct result of any breach
by the Party seeking to terminate or any of its
Affiliates.
|
|
(a)
|
At
any time prior to the date that is fifteen (15) Business Days prior to the
Anticipated Closing Date, Kolomoisky shall have the right to substitute
another Person to perform the obligations of Buyer under this Agreement in
the place of Harley Trading Limited (a "
Replacement Buyer
") by
written notice to Seller,
provided
that
|
|
(i)
|
any
Replacement Buyer shall only be either (i) Kolomoisky or (ii) a Person
Controlled by Kolomoisky;
|
|
(ii)
|
Kolomoisky
shall have provided and certified all such information as Seller
reasonably determines to be necessary or appropriate to comply with the
anti-money laundering Laws, rules and regulations of any applicable
jurisdiction (including the Anti-Money Laundering Laws), to respond to
requests for information concerning the identity of the proposed
Replacement Buyer's shareholders from any Governmental Authority,
self-regulatory organization or financial institution in connection with
its anti-money laundering compliance procedures, or to update such
information; and
|
|
(iii)
|
in
the event of the substitution of a Replacement Buyer pursuant to this
Clause 2.7(a), Kolomoisky shall procure that, and such substitution shall
not be effective until, (
i
) such
Replacement Buyer shall promptly adhere to the terms of this Agreement as
if it were a party hereto pursuant to a deed of adherence, and (
ii
) Harley
Trading Limited shall (subject to its replacement by the Replacement Buyer
pursuant to this Clause 2.7(a)) promptly unconditionally and irrevocably
release the Parties hereto from any liability incurred prior to the date
of such substitution pursuant to a release agreement, in the case of both
(i) and (ii) in a form acceptable to the Seller Parties. For
the avoidance of doubt, the Replacement Buyer shall have the same rights
and liabilities incurred by or accrued to Harley Trading Limited pursuant
to this Agreement prior to such
substitution.
|
|
(b)
|
For
the avoidance of doubt, subject to Clause 2.7(a), after the execution of
the agreements referred to in Clause 2.7(a)(iii), any references to Buyer
in this Agreement shall apply to Replacement
Buyer.
|
|
(a)
|
Where
any Warranty is qualified by the expression "so far as Seller or the
Company is aware" or "to the knowledge of Seller or the Company" or any
similar expression, that statement or reference shall mean so far as is
within the actual knowledge of any of Adrian Sarbu, Oliver Meister, Mr.
Tkachenko and the general directors, finance directors and chief legal
officers of any Studio 1+1 and Kino Group Entity, in each case having made
all reasonable enquiries.
|
|
(b)
|
Neither
Seller nor the Company shall be liable in respect of any claim for breach
of Warranty where or to the extent that Kolomoisky had knowledge (actual,
constructive or imputed) of the facts, matters or circumstances giving
rise to such Warranty claim in his capacity as a member of the board of
directors of Seller and a member of the supervisory boards of Studio 1+1
and 1+1 Production.
|
|
(a)
|
From
the date of this Agreement (or, if different, from the date the relevant
Warranty is given hereunder) until Closing, Kolomoisky and Buyer agree
to:
|
|
(i)
|
ensure
that no action is taken by Buyer the effect of which would, to the
knowledge of Buyer, cause a Buyer Warranty or Kolomoisky Warranty to be
untrue, inaccurate or misleading in any material respect if given in
respect of the facts or circumstances as at
Closing;
|
|
(ii)
|
notify
Seller promptly if it becomes aware of a fact or circumstance which
constitutes or which would or would reasonably be expected to constitute a
breach of any Buyer Warranty or Kolomoisky Warranty or Clause 4.1(a)(i),
or which would or might reasonably be expected to cause a Buyer Warranty
or Kolomoisky Warranty to be untrue, inaccurate or misleading in any
material respect in relation to the facts or circumstances as at Closing;
and
|
|
(iii)
|
without
limitation to the generality of Clause 2.2(b) and any remedies available
to Seller or the Company as a result of violation of any Warranty, take
any and all action necessary in order to cure violation of any Buyer
Warranty or Kolomoisky Warranty so as to ensure that by the Closing Date
all Buyer Warranties or Kolomoisky Warranties are true and correct in all
material respects.
|
|
(b)
|
From
the date of this Agreement (or, if different, from the date the relevant
Warranty is given hereunder) until Closing, the Company and Seller agree
to:
|
|
(i)
|
comply
with, and ensure that each Studio 1+1 and Kino Group Entity and the
Company complies with, Schedule 3 and ensure that no action is taken by
the Company, Seller or any Studio 1+1 and Kino Group Entity the effect of
which would, to the knowledge of Seller or the Company, cause a Studio 1+1
or Kino Group Warranty, Seller Warranty or Company Warranty to be untrue,
inaccurate or misleading in any material respect if given in respect of
the facts or circumstances at
Closing;
|
|
(ii)
|
not
Transfer or assign, and ensure that no Non-Company Affiliate Transfers or
assigns, any Existing Inter-Company Debt or Pre-Closing Investment Debt
held by such Person to any third
party;
|
|
(iii)
|
notify,
and ensure that each Studio 1+1 and Kino Group Entity notifies, Buyer
promptly if it becomes aware of a fact or circumstance which constitutes
or which would or would reasonably be expected to cause any Studio 1+1 and
Kino Group Warranty, Seller Warranty or Company Warranty to be untrue,
inaccurate or misleading in any material respect if given in respect of
the facts or circumstances at Closing or a breach of Clause 4.1(b)(i) or
4.1(b)(ii); and
|
|
(iv)
|
without
limitation to the generality of Clause 2.2(c) and any remedies available
to Buyer or Kolomoisky as a result of violation of any Warranty, take any
and all action necessary in order to cure violation of any Studio 1+1 and
Kino Group Warranty, Seller Warranty or Company Warranty so as to ensure
that by the Closing Date all Studio 1+1 and Kino Group Warranties, Seller
Warranties and Company Warranties are true and correct in all material
respects. Each of the Company or Seller shall take all actions reasonably
necessary in order to rectify any material problems and violations that
may have a detrimental effect on the Studio 1+1 and Kino Group
Entities.
|
|
(c)
|
If,
in the period prior to Closing, any Party (acting reasonably) considers
that there may have been a breach of any Warranty (an "
Inquiring Party
") by any
other Party (the "
Responding Party
"), the
Inquiring Party may by written notice given to the Responding Party prior
to Closing require the Responding Party to provide to such Inquiring
Party, and/or procure the provision to such Inquiring Party of all
information as such Inquiring Party may reasonably require in order to
ascertain whether such a breach has occurred. The Responding Party shall
as soon as reasonably practicable provide or procure the provision of all
such information.
|
|
(a)
|
From
the date of this Agreement until Closing, Buyer, the Company and Seller
agree that the operations of the Company shall be conducted in accordance
with Schedule 2. Subject to Clause 4.2(b) below, Buyer, the Company and
Seller agree that the Company and the Studio 1+1 and Kino Group Entities
shall not make any dispositions of funds not provided in the Budget in
excess of 110% of the corresponding amount in the Budget (an "
Extra-budgetary
Expenditure
") without the prior written consent of Buyer and
Seller, not to be unreasonably withheld or delayed. Any of the
Company, Seller or Buyer may, by written notice to the other Parties,
request that the Company make an Extra-budgetary
Expenditure. Any Extra-budgetary Expenditure shall be made as
soon as reasonably practicable after receipt by the Company of the written
notice requesting such Extra-budgetary
Expenditure.
|
|
(b)
|
In
the event that Buyer is not required to consent to an Extra-budgetary
Expenditure, then such Extra-budgetary Expenditure may nonetheless be
incurred, provided that it shall not be considered a Pre-Closing Approved
Expense, and accordingly shall not be included in the calculation of the
Adjusted Aggregate Consideration.
|
|
(c)
|
Seller
or any Non-Company Affiliate may pay or fund any expense of the Company or
any Studio 1+1 and Kino Group Entity contemplated by Clause 4.2(a) or
4.2(b) above by providing loans under a Loan Facility
Agreement.
|
|
(d)
|
Seller
estimates that the aggregate amount of all Pre-Closing Approved Expenses
incurred from the date of this Agreement to the Anticipated Closing Date
shall be US$19,000,000.
|
|
(e)
|
Promptly
following a drawing under a Loan Facility Agreement, Seller shall provide
to Buyer details of the same, including the date and amount of such
payment, a copy of the relevant request from CME Cyprus, if any, and a
copy of the bank statement of CME Cyprus showing the receipt of the
relevant funds.
|
|
(a)
|
From
the date of this Agreement until Closing, each Party shall use its
reasonable best efforts to take or cause to be taken all actions, and to
do or cause to be done all other things necessary, proper or advisable in
order for such Party to fulfill and perform its obligations in respect of
this Agreement (including its obligations pursuant to this Clause 4) and
the other Transaction Documents to which it is a party, to cause the
conditions to its obligations set forth in Clause 2.1 to be fulfilled and
otherwise to consummate and make effective the transactions contemplated
hereby and thereby.
|
|
(b)
|
The
Buyer Parties shall submit all required antimonopoly or merger control
applications or notifications required by the transactions contemplated
hereby to occur at Closing to the relevant Governmental Authorities on or
prior to 15 February 2010.
|
|
(c)
|
Buyer
shall as soon as practicable and no later than ten (10) Business Days
prior to the Anticipated Closing Date provide written notice to Seller
with a complete list of the names of Buyer's nominees to be named
directors, members of the supervisory board or any equivalent (and, where
applicable, secretaries and bank account signatories) of the Company and
any Studio 1+1 and Kino Group
Entity.
|
|
(d)
|
On
the date that is ten (10) Business Days prior to the Anticipated Closing
Date (the "
Pre-Closing
Accounting Date
"), Seller shall deliver to Buyer a notice
containing (
i
) the Balance
Amount and calculation thereof; (
ii
) the amount
of any Third Party Financial Debt; (
iii
) the exact
amount of any Pre-Closing Approved Expenses and any other Pre-Closing
Expenses together with copies of the Loan Facility Agreements and drawdown
notices thereunder and copy extracts of the bank statements of CME Cyprus
evidencing such Pre-Closing Expenses; (
iv
) the amount
of Earned Interest; (
v
) a
calculation of the Aggregate Adjusted Consideration; and (
vi
) a
calculation of the Closing Date Payment (the "
Pre-Closing Accounting
Notice
"). The Parties agree that the accounting
principles set forth on Schedule 8 shall apply in respect of the
calculation of the Balance Amount. Buyer shall have five (5)
Business Days from the date of receipt of the Pre-Closing Accounting
Notice to make inquiries to Seller in respect of any amounts of any items
set forth therein. Buyer shall confirm acceptance of the
Pre-Closing Accounting Notice (subject to any amendments thereto as may be
mutually agreed by the Seller and Buyer, each acting reasonably) in the
Closing Memorandum.
|
|
(a)
|
Seller
shall deliver on the date hereof a disclosure letter substantially in the
form attached as Exhibit B (the "
Signing Date Seller Disclosure
Letter
") disclosing those matters that would, without such
disclosure, cause any Seller Warranty, Company Warranty or Studio 1+1 and
Kino Group Warranty to be untrue, inaccurate or misleading in any material
respect in relation to the facts or circumstances as at the date of this
Agreement.
|
|
(b)
|
Seller
and the Company may, at any time prior to the date that is ten (10)
Business Days prior to the Anticipated Closing Date, deliver to Buyer a
draft Updated Seller Disclosure Letter for the purpose of disclosing those
matters that:
|
|
(i)
|
in
respect of each Warranty in Sections 2 and 3 and (to the extent relating
to matters above US$225,000) the Warranty in Section 5(h) of Part C of
Schedule 1, have occurred at any time prior to the date of the Updated
Seller Disclosure Letter; and
|
|
(ii)
|
in
respect of any other Warranties of Part C of Schedule 1 have occurred
since the date of this Agreement and were not known by Seller or the
Company as of such date,
|
|
(a)
|
Except
as otherwise provided in Clause 4.5(e), from and after the Closing,
Seller, on the one hand, and Buyer, on the other hand, shall in respect of
all other matters, promptly afford such other Party and its respective
agents reasonable access to their respective books and records,
information, employees and auditors (and, in the case of Buyer, including
those books and records, information, employees and auditors of the
Company and each of the Studio 1+1 and Kino Group Entities) to the extent
necessary or useful for the party requesting such access in connection
with any audit, investigation, dispute or Litigation,
provided
that
the party requesting such access agrees to reimburse the other party
promptly for all reasonable and documented out-of-pocket costs and
expenses incurred in connection with any such
request.
|
|
(b)
|
Except
as otherwise provided in Clause 4.5(e), and notwithstanding anything to
the contrary in Clause 4.5(a), (
i
) the access
rights set forth in Clause 4.5(a) shall be exercised in such manner as not
to interfere unreasonably with the conduct of the business of the Party
granting such access, (
ii
) the Party
granting access may withhold any document (or portions thereof) or
information (
A
) that is
subject to the terms of a non-disclosure agreement with a third party,
(
B
) that
may constitute privileged attorney-client communications or attorney work
product and the transfer of which, or the provision of access to which, as
reasonably determined by such Party's counsel, constitutes a waiver of any
such privilege or (
C
) if the
provision of access to such document (or portion thereof) or information,
as determined by such party's counsel, would reasonably be expected to
conflict with applicable Laws and (
iii
) neither
Seller nor any of its Affiliates or representatives shall have any
obligation to provide Buyer or its representatives (
A
) access
to any Tax Return filed by Seller or any of its Affiliates, or any related
materials, in each case not relating exclusively to the Company and its
Subsidiaries or (
B
) access
to any individual personnel or payroll records, in each case not relating
exclusively to the Company and its
Subsidiaries.
|
|
(c)
|
Except
as otherwise provided in Clause 4.5(e), from and after the
Closing: (
i
) Seller, on
the one hand, and each of the Buyer Parties, on the other hand, shall, and
shall cause their respective Affiliates and representatives to, maintain
in confidence this Agreement and the Transaction Documents and any
written, oral or other information related to the negotiation hereof and
thereof, (
ii
) Seller
shall, and shall cause its respective Affiliates and representatives to,
maintain in confidence any written, oral or other information relating to
the Company and its Subsidiaries obtained by virtue of Seller's ownership
of the Company and its Subsidiaries prior to the Closing and (
iii
) each of
the Buyer Parties shall, and shall cause its Affiliates and
representatives to, maintain in confidence any written, oral or other
information of or relating to Seller (other than information relating to
the Company and its Subsidiaries) obtained by virtue of Buyer's ownership
of the Company and its Subsidiaries from and after the Closing, except, in
each case, to the extent that the applicable Party is required to disclose
such information by judicial or administrative process or pursuant to
applicable Law or such information can be shown to have been in the public
domain through no fault of the applicable
party. Notwithstanding the foregoing, after the Closing, each
of the Buyer Parties shall, and shall cause its Affiliates and
representatives to, use commercially reasonable efforts to promptly (and
in any event within thirty days after the Closing) remove, erase, delete
or otherwise destroy all information of or relating to Seller (other than
information relating to the Company and its Subsidiaries) (whether in
print, electronic or other forms) in the possession of any employee of the
Company or its Subsidiaries.
|
|
(d)
|
Except
as otherwise provided in Clause 4.5(e), and subject to Clause 4.5(c),
Seller and its Affiliates shall have the right to retain copies of all
books, data, files, information and records in any media (including, for
the avoidance of doubt, Tax Returns and other information and documents
relating to tax matters) of the Company and its Subsidiaries relating to
periods ending on or prior to the Closing Date (
i
) relating to
information (including employment and medical records) regarding the
Company employees, (
ii
) as may be
required by any Governmental Authority, including pursuant to any
applicable Law or regulatory request or (
iii
) as may be
necessary for Seller or its Affiliates to perform their respective
obligations pursuant to this Agreement or any of the Transaction
Documents, in each case subject to compliance with all applicable privacy
Laws. Each of the Buyer Parties agrees that, with respect to
all original books, data, files, information and records of the Company
and its Subsidiaries existing as of the Closing Date, it will (
x
) comply
in all material respects with all applicable Laws relating to the
preservation and retention of records, (
y
) apply
preservation and retention policies that are no less stringent than those
generally applied by Buyer to its own books and records and (
z
) for at least
three (3) years after the Closing Date, preserve and retain all such
original books, data, files, information and records, and will use
reasonable best efforts to preserve and retain all such original books,
data, files, information and records for an additional four (4) years
thereafter, and thereafter dispose of such original books, data, files,
information and records only after it shall have given Seller ninety days'
prior written notice of such disposition and the opportunity (at Seller's
expense) to remove and retain such
information.
|
|
(e)
|
Buyer
hereby acknowledges that CME Media Enterprises B.V., a Non-Company
Affiliate of Seller, is on the date hereof currently engaged in an
on-going arbitration with CJSC Video International Company Group relating
to the termination of an agreement between CME Media Enterprises B.V. and
CJSC Video International Company Group (the "
VI
Arbitration
"). Notwithstanding anything to the contrary
in Clauses 4.5(a), 4.5(b), 4.5(c) and 4.5(d) or Clause 8 hereof, from and
after Closing:
|
|
(i)
|
Buyer
shall, and shall cause the Company and each of the Studio 1+1 and Kino
Group Entities to, promptly:
|
|
(1)
|
afford
Seller and its agents access to all books and records, information
(including electronic information and e-mails), accounts, employees and
auditors of the Company and its Subsidiaries that Seller requests to
advance Seller's legitimate interests in the VI Arbitration (a "
VI Request
"),
provided
that
Seller agrees to (
x
) notify Buyer
in writing that a particular request for access is a VI Request only and
(
y
) give
Buyer reasonable prior notice of any access required hereunder;
and
|
|
(2)
|
(
x
) waive any
rights any of the Company or any Studio 1+1 and Kino Group Entity may have
in respect of any document (or portions thereof) obtained as a result of
or in connection with a VI Request that may constitute privileged
attorney-client communications or attorney work product,
provided
that
the document (or portion thereof) that is subject to such waiver
originates from a date prior to the Closing Date, or (
y
) permit
employees of any Studio 1+1 and Kino Group Entity on reasonable prior
notice to provide evidence in the VI Arbitration, in each case if
requested and to the extent required by Seller to advance Seller's
legitimate interests in the VI
Arbitration,
|
|
(ii)
|
Seller
and its Affiliates shall have the right to retain, use and disclose, as
applicable, (
i
) the
existence of this Agreement and the Transaction Documents, (
ii
) any
written, oral or other information (including electronic information and
e-mails) relating to the Company and its Subsidiaries obtained as a result
of or in connection with any VI Request and (
iii
) any copies
of written, oral or other information relating to the Company and its
Subsidiaries obtained by virtue of Seller's ownership of the Company and
its Subsidiaries prior to the Closing,
provided
that
(
x
) the
same is retained, used or disclosed in connection with the VI Arbitration
and (
y
)
Seller shall provide Buyer prior notice of use or
disclosure.
|
|
(f)
|
Corporate
Names.
|
|
(a)
|
at
any time by mutual written consent of all of the Parties;
or
|
|
(b)
|
at
any time after the Pre-Closing Payment Date by Seller in the event that
the Pre-Closing Payment is not paid in accordance with Clause 2.4(b);
or
|
|
(c)
|
by
any of the Parties pursuant to
Clause 2.6(b).
|
|
(a)
|
If
this Agreement is terminated pursuant to Clause 5.1(a), then within five
(5) Business Days after the receipt of notice of such termination, Seller
shall transfer the full amount of the Termination Amount (as defined
below) to an account designated by
Buyer.
|
|
(b)
|
If
this Agreement is terminated pursuant to Clause 5.1(b), Buyer shall pay to
Seller, or Seller shall be entitled to retain from any Pre-Closing Payment
if such payment is made prior to the date of such termination the
aggregate amount of the Pre-Closing Payment
plus
any Earned
Interest (the "
Termination
Amount
").
|
|
(c)
|
If
this Agreement is terminated by any Party pursuant to Clause
5.1(c):
|
|
(i)
|
as
a consequence of a failure by Seller or any of its Affiliates to fulfill
any of the conditions set forth in Clauses 2.2(c)(i), 2.2(c)(ii)
2.2(c)(iii) (except where such Material Adverse Effect arises due to the
failure to fulfill any of the conditions set forth in Clause 2.2(a)(ii),
2.2(a)(iii) or 2.2(a)(iv)) and 2.2(c)(iv), or a breach by Seller of any of
its material obligations on the Closing Date pursuant to Clause 2.3, then
within five (5) Business Days after the receipt of notice of such
termination, Seller shall transfer the full amount of the Termination
Amount to an account designated by
Buyer;
|
|
(ii)
|
as
a consequence of a failure by Buyer or any of its Affiliates to fulfill
any of the conditions set forth in Clause 2.2(b), or a breach by Buyer of
any of its material obligations on the Closing Date pursuant to Clause
2.3, then Seller shall be entitled to retain the full amount of the
Termination Amount;
|
|
(iii)
|
as
a consequence of a failure of the condition set forth in Clause 2.2(a)(i),
then (
x
)
Seller shall be entitled to retain from the Termination Amount the full
amount of all Pre-Closing Approved Expenses and, if applicable, (
y
) within five
(5) Business Days after receipt of notice of such termination,
Seller shall transfer to an account designated by Buyer the amount equal
to the difference of the Termination Amount
minus
the Pre-Closing
Approved Expenses;
|
|
(iv)
|
as
a consequence of a failure of the conditions set forth in Clause
2.2(a)(ii), 2.2(a)(iii) or 2.2(a)(iv), then (
x
) Seller shall
be entitled to retain from the Termination Amount the amount equal to
one-half (1/2) of all Pre-Closing Approved Expenses and, if applicable,
(
y
)
within five (5) Business Days after receipt of notice of such termination,
Seller shall transfer to an account designated by Buyer the amount equal
to the difference of the Termination Amount
minus
the amount equal
to one-half (1/2) of all Pre-Closing Approved
Expenses;
|
|
(d)
|
The
Pre-Closing Payment is a deposit paid in consideration of Seller's entry
into this Agreement and is not refundable in whole or in part except as
expressly provided pursuant to this Clause 5.2. The Buyer
Parties acknowledge and agree that the agreements contained in this Clause
5.2 are an integral part of the transactions contemplated by this
Agreement and that, without these agreements, Seller would not enter into
this Agreement. Each of the Parties hereto further acknowledges
that the payment or retention (as applicable) of the Termination Amount is
not a penalty and is without prejudice to any other rights Seller or Buyer
may have at the time of any
termination.
|
|
(a)
|
A
claim (which shall include any claim in respect of a breach of any
Warranty) hereunder (an "
Indemnity Claim
") shall
be asserted by written notice from the Party asserting such Indemnity
Claim (the "
Indemnified
Party
") to the Party from whom indemnification is sought (the
"
Indemnifying
Party
"). Such notice shall include information regarding
the nature and basis for the Indemnity Claim and an estimate of the amount
of Losses demanded (including, to the extent practicable, a calculation of
the alleged Losses).
|
|
(b)
|
If
the Indemnity Claim relates to any claim by a third party (a "
Third Party Claim
"), the
Indemnified Party shall state in the notice to the Indemnifying Party the
nature and basis of the Third Party Claim and the amount thereof, to the
extent known or estimable. The Indemnifying Party shall be
entitled at its own expense to assume the defense of the Third Party
Claim, using legal advisers reasonably approved by the Indemnified
Party. The Indemnified Party shall provide the Indemnifying
Party and its advisers with such information and assistance as the
Indemnifying Party shall reasonably request at the cost of the
Indemnifying Party. If the Indemnifying Party does not promptly
assume the defense of such Third Party Claim following notice thereof, the
Indemnified Party shall be entitled to assume and control such
defense. The Indemnifying Party shall not, without the prior
written consent of the Indemnified Party (which shall not be unreasonably
withheld), consent to a settlement, compromise or discharge of, or the
entry of any judgment arising from, any Third Party Claim, unless such
settlement, compromise or discharge does not involve any finding or
admission of any violation of Law or admission of any wrongdoing by the
Indemnified Party and the Indemnifying Party shall (
i
) pay or cause
to be paid all amounts arising out of such settlement or judgment
concurrently with the effectiveness of such settlement, (
ii
) not
encumber any of the assets of any Indemnified Party or agree to any
restriction or condition that would apply to or adversely affect any
Indemnified Party and (
iii
) obtain, as
a condition of any settlement or other resolution, a complete and
unconditional release of each Indemnified Party from any and all liability
in respect of such Third Party
Claim.
|
|
(c)
|
The
obligation of an Indemnifying Party shall not extend to any liability
arising from the settlement or compromise of any action or claims brought
against the Indemnified Party, or the admission by the Indemnified Party
of any claim or the taking by the Indemnified Party of any action (unless
required by Law or applicable process), which might reasonably be expected
to prejudice the successful defense of the action or claim without, in any
such case, the prior written consent of the Indemnifying
Party.
|
|
(a)
|
The
Studio 1+1 and Kino Group Warranties (other than the Fundamental Studio
1+1 and Kino Group Warranties) shall survive the Closing until the second
anniversary of the Closing Date. The Studio 1+1 and Kino Group
Tax Warranties shall survive until sixty (60) days following the
expiration of the relevant statute of
limitations.
|
|
(b)
|
Any
Indemnity Claim notified under this Clause 6 is principal and continuing
and accordingly shall remain in full force and effect regardless of the
legality, validity or enforceability of any other provisions of this
Agreement and notwithstanding the winding-up, liquidation or dissolution
of any Party or any of its Affiliates or other incapacity or limitation of
any Party or any of its Affiliates or any change in the status, control or
ownership thereof.
|
|
(a)
|
Except
in the case of fraud or any Termination Amount payable under Clause 5.2,
the maximum aggregate liability of the Seller Parties, on the one hand,
and the Buyer Parties, on the other hand, for any and all Indemnity Claims
or other claims arising in respect of this Agreement and made prior to
Closing shall not exceed US$500,000. For the avoidance of
doubt, this limitation shall be inapplicable for all such claims if the
Closing occurs.
|
|
(b)
|
A
Party shall be liable in respect of an Indemnity Claim made after Closing
in respect of a Warranty only if the amount payable (but for this Clause
6.6(b)) in respect of such Indemnity
Claim:
|
|
(i)
|
exceeds
US$500,000; and
|
|
(ii)
|
when
taken with every other Indemnity Claim for which the liability of the
relevant Party or its Affiliates individually exceeds the relevant
threshold for such Indemnity Claim in Clause 6.6(b)(i) and 6.6(c)(i), and
all Indemnity Claims also exceed in aggregate US$4,000,000, in which case
the Party shall be liable for the whole amount of all such Indemnity
Claims and not only for the excess,
|
|
(c)
|
A
Party shall be liable in respect of an Indemnity Claim made after Closing
in respect of any Fundamental Warranty only if the amount payable (but for
this Clause 6.6(c)) in respect of such Indemnity
Claim:
|
|
(i)
|
exceeds
US$100,000; and
|
|
(ii)
|
when
taken with every other Indemnity Claim in respect of any Fundamental
Warranty for which the liability of the relevant Party or its Affiliates
individually exceeds US$100,000, also exceeds in aggregate US$2,000,000,
in which case the Party shall be liable for the whole amount of all such
Indemnity Claims and not only for the
excess,
|
|
(d)
|
For
the purpose of Clauses 6.6(b) and 6.6(c) above two or more Indemnity
Claims arising from the same set of facts, matters or circumstances or a
series of related facts, matters or circumstances shall be treated as a
single Indemnity Claim.
|
|
(e)
|
Except
for Indemnity Claims in respect of Fundamental Warranties and except in
the case of fraud, the maximum aggregate liability of any Party for any
and all Indemnity Claims shall not exceed
US$100,000,000.
|
|
(f)
|
The
maximum aggregate liability of any Party for any and all Indemnity Claims
arising out of or in connection with any breach of Warranty shall not
exceed US$300,000,000, except in the case of fraud, in which case no
limits shall apply.
|
|
(g)
|
For
purposes of the calculation of Losses pursuant to this Clause 6, any
materiality or similar qualification (including any monetary threshold)
referred to in the relevant Warranty which is the subject of an Indemnity
Claim shall be ignored.
|
|
(a)
|
Kolomoisky
hereby absolutely, unconditionally and irrevocably undertakes to Seller as
follows:
|
|
(i)
|
on
the Pre-Closing Payment Date and on the Closing Date, as applicable, Buyer
will have sufficient funds to pay the Pre-Closing Payment and the Closing
Date Payment, as applicable;
|
|
(ii)
|
Buyer
will pay the Adjusted Aggregate Consideration in accordance with Clause
2.4(a)
|
|
(b)
|
For
the avoidance of doubt, notwithstanding any other provision of this
Agreement, the maximum aggregate liability of Kolomoisky for any and all
liabilities, costs, obligations, damages and expenses arising under or in
respect of this Agreement and any other Transaction Document shall not
exceed US$30,000,000.
|
|
(a)
|
in
response to an order of a court of competent jurisdiction, or in response
to an appropriate subpoena or discovery request issued in the course of
Litigation;
|
|
(b)
|
in
response to (
i
) an inquiry
to which by Law a response must be given or, on advice of counsel, to
which a response is advisable or (
ii
) any order
issued by a Governmental Authority or supra-governmental agency of
competent jurisdiction;
|
|
(c)
|
to
the extent necessary to report income to appropriate taxing authorities
and/or to contest the imposition of any Tax by appropriate taxing
authorities;
|
|
(d)
|
to
such Party's respective accountants and legal advisers and to any broker
or insurer or relevant reinsurer or retrocessionaire in all cases (other
than disclosure to legal advisers) as may be required by contract and/or
by Law;
|
|
(e)
|
in
connection with any Litigation or arbitration proceedings between the
Parties relating to this Agreement or any other Transaction Document;
and
|
|
(f)
|
to
the extent required or (on advice of counsel) appropriate in order to
comply with applicable Law or stock exchange
rules.
|
|
(a)
|
General
. Any
dispute, controversy or claim arising out of or relating to this
Agreement, including any question regarding its existence, validity,
interpretation, performance or termination, shall be finally resolved by
arbitration in accordance with the then existing Rules of Arbitration of
the London Court of International Arbitration (the "
LCIA Rules
"), which are
deemed to be incorporated by reference into this Clause 11.2, except
to the extent modified by this Clause 11.2. The tribunal
shall consist of three arbitrators. Subject to the provisions
of Clause 11.2(c) the parties to any such arbitration shall each be
entitled to nominate one arbitrator and the third arbitrator shall be
appointed by the two party-nominated arbitrators. In a
multi-dispute the tribunal shall be appointed by the LCIA Court, unless
the parties to such arbitration agree in writing that, for the purpose of
Article 8.1 of the LCIA Rules, the disputant parties represent two
separate sides for the formation of the tribunal as claimant and
respondent respectively. The parties expressly agree that leave
to appeal under section 69(1) or an application for the determination of a
preliminary point of law under section 45 of the Arbitration Act 1996 may
not be sought with respect to any question of law arising out of an award
or in the course of the
proceedings.
|
|
(b)
|
Seat and
Language
. The seat of the arbitration shall be London,
England. The language of the arbitration shall be English
except that any party to the arbitration may submit testimony or
documentary evidence in Ukrainian or Russian and shall furnish a
translation or interpretation of any such evidence into
English.
|
|
(c)
|
Related
Disputes
. If any dispute arising out of or relating to
this Agreement (hereinafter referred to as a "
Related Dispute
") raises
issues which are substantially the same as or connected with issues raised
in another dispute which has already been referred to arbitration under
this Agreement or any other Transaction Document (an "
Existing Dispute
"), the
tribunal appointed or to be appointed in respect of any such Existing
Disputes shall also be appointed as the tribunal in respect of any such
Related Dispute. Where, pursuant to the foregoing provisions,
the same tribunal has been appointed in relation to two or more disputes,
the tribunal may, with the agreement of all the parties concerned or upon
the application of one of the parties, being a party to each of the
disputes, order that the whole or part of the matters at issue shall be
heard together upon such terms or conditions as the tribunal thinks
fit. The tribunal shall have power to make such directions and
any interim or partial award as it considers just and
desirable.
|
CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD.
|
|||
By:
|
/s/ Adrian Sarbu
|
||
Name:
|
Adrian
Sarbu
|
||
Title:
|
President
and Chief Executive Officer
|
||
HARLEY
TRADING LIMITED
|
|||
By:
|
/s/ Agathoulla
Constantinou
|
||
Name:
|
Agathoulla
Constantinou
|
||
Title:
|
Director
|
||
IGOR
VALERYEVICH KOLOMOISKY
|
|||
/s/ Igor Kolomoisky
|
|||
CME
CYPRUS HOLDING II LIMITED
|
|||
By:
|
/s/ David Sturgeon
|
||
Name:
|
David
Sturgeon
|
||
Title:
|
Director
|
1.
|
CAPACITY
AND AUTHORITY
|
2.
|
GENERAL
REPRESENTATIONS AND WARRANTIES
|
1.
|
CAPACITY
AND AUTHORITY
|
2.
|
GENERAL
REPRESENTATIONS AND WARRANTIES
|
1
|
Applicable
to Kolomoisky.
|
1.
|
REPRESENTATIONS
AND WARRANTIES RELATING TO BUYER OR THE
SHARES
|
1.
|
CAPACITY
AND AUTHORITY
|
2.
|
THE
COMPANY
|
3.
|
STUDIO
1+1 AND KINO GROUP ENTITIES'
SHARES
|
4.
|
LICENSES
|
5.
|
ABSENCE
OF CERTAIN CHANGES
|
|
(a)
|
any
incurrence of any indebtedness by any Studio 1+1 and Kino Group Entity
other than Inter-Company Debt;
|
|
(b)
|
any
creation or other incurrence of any Lien on any material Asset of any
Studio 1+1 and Kino Group Entity;
|
|
(c)
|
any
loan, advance or capital contribution to or investment in any Person by
any Studio 1+1 and Kino Group Entity, other than to or in a wholly-owned
Subsidiary of any Studio 1+1 and Kino Group Entity in the ordinary course
of business consistent with past practice or as permitted under the
Agreement;
|
|
(d)
|
any
material damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the Studio 1+1 and Kino Group
Entities;
|
|
(e)
|
any
change in any method of accounting or accounting principles or practices
by any Studio 1+1 and Kino Group Entity except for any such change
required by reason of a concurrent change in U.S.
GAAP;
|
|
(f)
|
any
material Tax election made or changed, any annual Tax accounting period
changed, any method of Tax accounting adopted or changed, any material
amended Tax filings or claims for material Tax refunds filed, any material
closing agreement entered into, any material proposed Tax adjustments or
assessments, any material Tax claim, audit or assessment settled, or any
right to claim a material Tax refund, offset or other reduction in Tax
liability surrendered, in each case, by any Studio 1+1 and Kino Group
Entity;
|
|
(g)
|
any
sale, transfer, lease, exclusive license or other disposition of any Asset
in excess of US$225,000, except for inventory sold in the ordinary course
of business consistent with past practice of the Studio 1+1 and Kino Group
Entities;
|
|
(h)
|
any
amendment, cancellation, compromise or waiver of any material claim or
right of any Studio 1+1 and Kino Group Entity; for the purposes of this
sub-section, "material" means (
i
) on the date
of this Agreement, US$500,000 and (
ii
) on the
Closing Date, US$225,000; or
|
|
(i)
|
any
event, development or state of circumstances that has had or would
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
|
6.
|
CERTAIN
FILINGS; FINANCIAL STATEMENTS
|
7.
|
ASSETS
|
8.
|
MATERIAL
CONTRACTS
|
|
(a)
|
any
agreement relating to any indebtedness (whether incurred, assumed,
guaranteed or secured by any asset) other than Inter-Company Debt or any
indebtedness owed by one Studio 1+1 and Kino Group Entity to any other
Studio 1+1 and Kino Group Entity;
|
|
(b)
|
any
joint venture, partnership, limited liability company or other similar
agreements or arrangements (including any agreement providing for joint
research, development or
marketing);
|
|
(c)
|
any
agreement or series of related agreements, including any option agreement,
relating to the acquisition or disposition of any business, capital stock
or Assets of any other Person or any material real property (whether by
merger, sale of stock, sale of Assets or
otherwise);
|
|
(d)
|
any
agreement relating to any interest rate, derivatives or hedging
transaction;
|
|
(e)
|
any
agreement (including any "take-or-pay" or keepwell agreement) under which
(
A
) any
Person has directly or indirectly guaranteed any liabilities or
obligations of any of the
Studio 1+1 and Kino
Group
Entities or (
B
) any
Studio 1+1 and Kino
Group Entity has directly or indirectly guaranteed any liabilities
or obligations of any other Person (in each case other than endorsements
for the purpose of collection in the ordinary course of
business);
|
|
(f)
|
any
other agreement, commitment, arrangement or plan that is (
A
) not
made in the ordinary course of business or (
B
) material
to the
Studio 1+1 and Kino
Group Entities, taken as a whole;
or
|
|
(g)
|
any
agreement that limits the freedom of any Studio 1+1 and Kino Group Entity
to conduct its business in all material respects as it is currently being
conducted.
|
9.
|
UNDISCLOSED
LIABILITIES; DEBTS AND
BORROWING
|
10.
|
LITIGATION
|
11.
|
INTELLECTUAL
PROPERTY
|
12.
|
EMPLOYEES;
LABOR MATTERS
|
13.
|
AFFILIATE
TRANSACTIONS
|
14.
|
TAX
MATTERS
|
15.
|
POWERS
OF ATTORNEY
|
16.
|
DISCLOSURE
OF INFORMATION
|
17.
|
NO
BROKERS
|
18.
|
PRE-CLOSING
ACCOUNTING NOTICE
|
EXECUTED
as a deed
by
CENTRAL EUROPEAN MEDIA
ENTERPRISES LTD.
acting
by:
|
Signature
|
|
/s/ Adrian Sarbu
|
||
Title: President
and Chief Executive Officer
|
Address
|
C/O
CME MEDIA SERVICES
|
Occupation
|
Assistant
to the President and Chief Executive
Officer
|
EXECUTED
as a deed
by
ALSTROM BUSINESS CORP
acting by:
|
Signature
|
|
/s/ Michalakis
Tsitsekkos
|
||
Title:
|
Address
|
21
Aglantzias Ave, Block 21B, Office 1, Aglantzia, 2108, Nicosia,
Cyprus
|
Occupation
|
Corporate
Administrator
|
EXECUTED
as a deed
by
MICHALAKIS
TSITSEKKOS
:
|
Signature
|
|
/s/ Michalakis
Tsitsekkos
|
Address
|
21
Aglantzias Ave, Block 21B, Office 1, Aglantzia, 2108, Nicosia,
Cyprus
|
Occupation
|
Corporate
Administrator
|
EXECUTED
as a deed
by
IGOR VALERYEVICH
KOLOMOISKY
:
|
Signature
|
|
/s/ Igor
Kolomoisky
|
Occupation
|
First
Deputy Chairman of Privatbank
|
EXECUTED
as a deed
by
IHOR MYKHAILOVICH
SURKIS
:
|
Signature
|
|
/s/ Ihor
Surkis
|
Occupation
|
Sofocleous
& Co. Consulting Director
|
EXECUTED
as a deed
by
CME UKRAINE HOLDING
B.V.
acting
by:
|
Signature
|
|
/s/ David Sturgeon
|
||
Title:
Managing Director
|
Address
|
c/o
52 Charles Street
|
Occupation
|
Legal
Advisor
|
EXECUTED
as a deed
by
CME CYPRUS HOLDING
LIMITED
acting
by:
|
Signature
|
|
/s/ David Sturgeon
|
||
Title:
Director
|
Address
|
c/o
52 Charles Street
|
Occupation
|
Legal
Advisor
|
DEFINITIONS
AND INTERPRETATION
|
3
|
|
2.
|
THE
FACILITY
|
49
|
3.
|
PURPOSE
|
50
|
4.
|
CONDITIONS
OF UTILISATION
|
50
|
5.
|
UTILISATION
LOAN
|
51
|
6.
|
REPAYMENT
|
52
|
7.
|
EXTENSION
OF INITIAL TERMINATION DATE
|
54
|
8.
|
ILLEGALITY,
VOLUNTARY PREPAYMENT AND CANCELLATION
|
56
|
9.
|
MANDATORY
PREPAYMENT
|
58
|
10.
|
RESTRICTIONS
|
58
|
11.
|
INTEREST
|
59
|
12.
|
INTEREST
PERIODS
|
60
|
13.
|
CHANGES
TO THE CALCULATION OF INTEREST
|
61
|
14.
|
FEES
|
63
|
15.
|
TAX
GROSS UP AND INDEMNITIES
|
64
|
16.
|
INCREASED
COSTS
|
68
|
17.
|
OTHER
INDEMNITIES
|
69
|
18.
|
MITIGATION
BY THE LENDERS
|
71
|
19.
|
COSTS
AND EXPENSES
|
71
|
20.
|
GUARANTEE
AND INDEMNITY
|
72
|
21.
|
REPRESENTATIONS
|
76
|
22.
|
INFORMATION
UNDERTAKINGS
|
84
|
23.
|
FINANCIAL
COVENANTS
|
89
|
24.
|
GENERAL
UNDERTAKINGS
|
95
|
25.
|
EVENTS
OF DEFAULT
|
105
|
26.
|
CHANGES
TO THE LENDERS
|
110
|
27.
|
RESTRICTION
ON DEBT PURCHASE TRANSACTIONS
|
115
|
28.
|
CHANGES
TO THE OBLIGORS
|
116
|
29.
|
ROLE
OF THE FACILITY AGENT, THE SECURITY AGENT, THE ARRANGER AND
OTHERS
|
116
|
30.
|
CONDUCT
OF BUSINESS BY THE FINANCE PARTIES
|
127
|
31.
|
SHARING
AMONG THE FINANCE PARTIES
|
127
|
32.
|
PAYMENT
MECHANICS
|
129
|
33.
|
SET-OFF
|
133
|
34.
|
NOTICES
|
133
|
35.
|
CALCULATIONS
AND CERTIFICATES
|
136
|
36.
|
PARTIAL
INVALIDITY
|
136
|
37.
|
REMEDIES
AND WAIVERS
|
137
|
38.
|
AMENDMENTS
AND WAIVERS
|
137
|
39.
|
CONFIDENTIALITY
|
141
|
40.
|
COUNTERPARTS
|
145
|
41.
|
GOVERNING
LAW
|
145
|
42.
|
ENFORCEMENT
|
146
|
SCHEDULE
1
THE ORIGINAL PARTIES
|
147
|
SCHEDULE
2
CONDITIONS PRECEDENT
|
149
|
SCHEDULE
3
UTILISATION REQUEST
|
156
|
SCHEDULE
4
MANDATORY COST FORMULA
|
157
|
SCHEDULE
5
FORM OF TRANSFER CERTIFICATE
|
160
|
SCHEDULE
6
FORM OF ASSIGNMENT AGREEMENT
|
163
|
SCHEDULE
7
FORM OF ACCESSION DEED
|
166
|
SCHEDULE
8
FORM OF COMPLIANCE CERTIFICATE
|
168
|
SCHEDULE
9
LMA FORM OF CONFIDENTIALITY UNDERTAKING
|
169
|
SCHEDULE 10
TIMETABLES
|
173
|
SCHEDULE
11
GROUP STRUCTURE CHART
|
174
|
SCHEDULE
12
EXISTING SECURITY
|
175
|
SCHEDULE
13
SUPPLEMENTARY SECURITY AGENT PROVISIONS
|
176
|
(1)
|
CET 21 SPOL. S R.O.
(the
“
Borrower
”);
|
(2)
|
THE COMPANIES
listed in
Part I of Schedule 1 (
The Original Parties
)
as original guarantors (the “
Original
Guarantors
”);
|
(3)
|
ERSTE GROUP BANK AG
as
mandated lead arranger (the “
Arranger
”);
|
(4)
|
THE FINANCIAL INSTITUTIONS
listed in Part II of Schedule 1 (
The Original Parties
)
as lenders (the “
Original
Lenders
”);
|
(5)
|
ČESKÁ
SPOŘITELNA, A.S.
as agent for the Finance Parties (the “
Facility Agent
”);
and
|
(6)
|
ČESKÁ
SPOŘITELNA, A.S.
as security agent for the Secured Parties
(the “
Security
Agent
”).
|
1.
|
DEFINITIONS
AND INTERPRETATION
|
1.1
|
Definitions
|
|
(a)
|
a
bank or financial institution which has a rating for its long-term
unsecured and non credit-enhanced debt obligations of A- or higher by
Standard & Poor’s Rating Services or F1 or higher by Fitch Ratings Ltd
or P-1 or higher by Moody’s Investor Services Limited or a comparable
rating from an internationally-recognised credit rating agency;
or
|
|
(b)
|
any
other bank or financial institution approved by the Facility
Agent.
|
|
(a)
|
in
the Czech Republic, in the case of the
Borrower;
|
|
(b)
|
in
the Slovak Republic, in the case of each Slovak
Obligor;
|
|
(c)
|
in
the Netherlands, in the case of each Dutch Obligor;
or
|
|
(d)
|
in
the United States of America, in the case of the
Parent,
|
|
(a)
|
the
amount of its participation in any outstanding Loans;
and
|
|
(b)
|
in
relation to any proposed Loan, the amount of its participation in any
other Loans that are due to be made on or before the proposed Utilisation
Date.
|
|
(a)
|
any
person or group of persons acting in concert, in each case other than one
or more Permitted Borrower Holders, gains direct or indirect control of
the Borrower;
|
|
(b)
|
the
sale, lease, licence, transfer, conveyance, loan or other disposal (other
than by way of amalgamation, merger or consolidation) by the Borrower
(whether by a voluntary or involuntary single transaction or series of
transactions), of all or substantially all of the assets of the Borrower;
or
|
|
(c)
|
the
Borrower ceases to control (directly or indirectly) CME Slovak Holdings
B.V. or Markiza;
|
|
(a)
|
“
control
” of the
Borrower, Markiza or CME Slovak Holdings B.V., as applicable,
means:
|
|
(i)
|
the
power (whether by way of ownership of shares, proxy, contract, agency or
otherwise) to:
|
|
(A)
|
cast,
or control the casting of, more than 66⅔ per cent. of the maximum number
of votes that might be cast at a general meeting of the Borrower, Markiza
or CME Slovak Holdings B.V., as
applicable;
|
|
(B)
|
appoint
or remove all, or the majority, of the statutory executives (
jednatelé
) of the
Borrower or Markiza or directors of CME Slovak Holdings B.V., as
applicable; and
|
|
(C)
|
give
directions with respect to the operating and financial policies of the
Borrower, Markiza or CME Slovak Holdings B.V., as applicable, with which
the statutory executives (
jednatelé
) of the
Borrower or Markiza or directors of CME Slovak Holdings B.V., as
applicable, are obliged to comply;
and
|
|
(ii)
|
the
holding beneficially of ownership interest (or other form of
participation) representing more than 66⅔ per cent. of the registered
voting capital of the Borrower, Markiza or CME Slovak Holdings B.V., as
applicable; and
|
(b)
|
“
acting in concert
”
means, a group of persons who, pursuant to an agreement or understanding
(whether formal or informal), actively co-operate, through the acquisition
directly or indirectly of the ownership interest (or other form of
participation) in the Borrower or CME Slovak Holdings B.V., as applicable,
by any of them, either directly or indirectly, to obtain or consolidate
control of the Borrower or CME Slovak Holdings B.V., as
applicable.
|
|
(a)
|
the
interest which a Lender should have received for the period from the date
of receipt of all or any part of its participation in a Loan or Unpaid Sum
to the last day of the current Interest Period in respect of that Loan or
Unpaid Sum, had the principal amount or Unpaid Sum received been paid on
the last day of that Interest
Period;
|
|
(b)
|
the
amount which that Lender would be able to obtain by placing an amount
equal to the principal amount or Unpaid Sum received by it on deposit with
a leading bank in the Prague interbank market for a period starting on the
Business Day following receipt or recovery and ending on the last day of
the current Interest Period.
|
|
(a)
|
License
no. T/41, dated August 7, 1995 (Markiza analogue, satellite, cable and
digital pilot); and
|
|
(b)
|
License
no. 001/1993, file no. R/060/93, dated February 9, 1993 (NOVA
terrestrial).
|
|
(a)
|
that
cash is repayable on demand;
|
|
(b)
|
repayment
of that cash is not contingent on the prior discharge of any other
indebtedness of any member of the Group or of any other person whatsoever
or on the satisfaction of any other
condition;
|
|
(c)
|
there
is no Security over that cash except for Transaction Security or any
Permitted Security constituted by a netting or set-off arrangement entered
into by the Obligors in the ordinary course of their banking arrangements;
and
|
|
(d)
|
the
cash is freely and (except as mentioned in paragraph (a) above)
immediately available to be applied in repayment or prepayment of the
Facility.
|
|
(a)
|
certificates of deposit or time deposits maturing within one year
after the relevant date of calculation and overnight deposits in each case
issued by or with an Acceptable Bank;
|
|
(b)
|
any
investment in marketable debt obligations issued or guaranteed by the
government of the United States of America, the United Kingdom, any member
state of the European Economic Area or any Participating Member State or
by an instrumentality or agency of any of them having an equivalent credit
rating, maturing within one year after the relevant date of calculation
and not convertible or exchangeable to any other
security;
|
|
(c)
|
commercial
paper not convertible or exchangeable to any other
security:
|
|
(i)
|
for
which a recognised trading market
exists;
|
|
(ii)
|
issued
by an issuer incorporated in the United States of America, the United
Kingdom, any member state of the European Economic Area or any
Participating Member State;
|
|
(iii)
|
which
matures within one year after the relevant date of calculation;
and
|
|
(iv)
|
which
has a credit rating of either A-1 or higher by Standard & Poor’s
Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by
Moody’s Investor Services Limited, or, if no rating is available in
respect of the commercial paper, the issuer of which has, in respect of
its long-term unsecured and non-credit enhanced debt obligations, an
equivalent rating;
|
|
(d)
|
any
investment in money market funds which (i) have a credit rating of
either A-1 or higher by Standard & Poor’s Rating Services or F1 or
higher by Fitch Ratings Ltd or P-1 or higher by Moody’s Investor Services
Limited, (ii) which invest substantially all their assets in
securities of the types described in paragraphs (a) to (c) above and
(iii) can be turned into cash on not more than 30 days’ notice;
or
|
|
(e)
|
any
other debt security approved by the Majority
Lenders,
|
|
“
Change of Control
” means
the occurrence of any of the following
events:
|
|
(a)
|
a
Borrower Change of Control; or
|
|
(b)
|
a
Parent Change of Control.
|
|
(a)
|
any
“person” or “group” of related persons, other than one or more Permitted
Borrower Holders, is or becomes the beneficial owner, directly or
indirectly, of more than 35% of the total voting power of the Voting Stock
of the Parent and the Permitted Borrower Holders beneficially own,
directly or indirectly, in the aggregate a lesser percentage of the total
voting power of the Voting Stock of the Parent than such person or
group;
|
|
(b)
|
the
sale, lease, transfer, conveyance or other disposition (other than by way
of amalgamation, merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Parent and
the Restricted Subsidiaries taken as a whole to any “person” other than
the Permitted Borrower Holder;
|
|
(c)
|
the
first day on which a majority of the members of the Board of Directors are
not Continuing Directors; or
|
|
(d)
|
the
adoption by the shareholders of the Parent of a plan relating to the
liquidation or dissolution of the
Parent.
|
|
For
purposes of this definition:
|
|
(a)
|
“
person
” and “
group
” have the meanings
they have in Sections 13(d) and 14(d) of the U.S. Exchange
Act;
|
|
(b)
|
“
beneficial
owner
” is used as
defined in Rules 13d-3 and 13d-5 under the U.S. Exchange Act, except that
a person shall be deemed to have “beneficial ownership” of all shares that
such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of
time;
|
|
(c)
|
a
person will be deemed to beneficially own any Voting Stock of an entity
held by a parent entity, if such person is the beneficial owner, directly
or indirectly, of more than 35% of the voting power of the Voting Stock of
such parent entity and the Permitted Borrower Holders beneficially own,
directly or indirectly, in the aggregate a lesser percentage of the voting
power of the Voting Stock of such parent
entity;
|
|
(d)
|
a
“
Continuing
Director
” means any
member of the Board of Directors who was a member of such Board of
Directors on 17 September 2009 or was nominated for election or was
elected to such Board of Directors with the approval of the majority of
Continuing Directors who were members of such Board of Directors at the
time of such nomination or
election;
|
|
(e)
|
“
Board
of
Directors
” means the
board of directors of the Parent or any committee thereof duly authorized
to act on behalf of such board;
|
|
(f)
|
“
Voting
Stock
” of a person means
all classes of Capital Stock of such person then outstanding and normally
entitled to vote in the election of members of the board of directors or a
management board, directors or persons acting in a similar capacity on
similar corporate bodies;
|
|
(g)
|
“
Capital
Stock
” of a person means
any and all shares, interests, rights to purchase, warrants, options,
participations or other equivalents of or interests in (however
designated) equity of such corporation (including any preferred stock but
excluding any debt securities convertible into such equity of such
corporation;
|
|
(h)
|
“
Unrestricted
Subsidiary
” means at any
time:
|
|
(i)
|
any
of International Media Services Ltd., CME Ukraine Holding GmbH, Innova
Film GmbH, CME Cyprus Holding Ltd., Grizard Investments Limited, Grintwood
Investments Limited, TV Media Planet Ltd., 1 + 1 Production, Studio 1+1
LLC, Ukrainian Media Services LLC, Ukrpromtorg-2003 LLC, Gravis-Kino LLC,
TV Stimul LLC, TOR LLC, ZHYSA LLC, Top Tone Media S.A., Zopal S.A., PRO BG
MEDIA EOOD, LG Consult EOOD, Top Tone Media Bulgaria EOOD, Ring TV EAD and
CME Development Financing B.V.;
|
|
(ii)
|
any
Subsidiary of any of the persons listed in (i) above;
and
|
|
(iii)
|
any
Subsidiary of the Parent which is designated by the Board of Directors an
“Unrestricted Subsidiary”, provided that such designation by the Board of
Directors be evidenced by the Borrower (or Parent) by filing (within 5
days from the filing of such documents to the Trustee) with the Facility
Agent:
|
|
(x)
|
either
a copy of the resolution of the Board of Directors or a true and correct
extract of the resolution of the Board of Directors being filed with the
Trustee and giving effect to such designation;
and
|
|
(y)
|
a
copy of the certificate signed by the Parent’s two authorized officers
being filed with the Trustee and certifying that such designation complies
with the conditions set out in (A) through (F)
below;
|
|
(A)
|
such
person is at such time a Subsidiary of the
Parent;
|
|
(B)
|
neither
such person nor any of its Subsidiaries owns at such time any Capital
Stock or Indebtedness of or have any investment in, or own or hold any
Security on any property of, any other Subsidiary of the Parent which is
not a Subsidiary of such person or otherwise an Unrestricted
Subsidiary;
|
|
(C)
|
all
the Indebtedness of such person and its Subsidiaries shall, at the date of
designation, and will at all times thereafter, consist of Non-Recourse
Debt;
|
|
(D)
|
such
person, either alone or in the aggregate with all other Unrestricted
Subsidiaries, does not operate, directly or indirectly, all or
substantially all of the business of the Parent and its
Subsidiaries;
|
|
(E)
|
such
person is a person with respect to which neither the Parent nor any of its
Restricted Subsidiaries has any direct or indirect
obligation:
|
|
(x)
|
to
subscribe for additional Capital Stock of such person;
or
|
|
(y)
|
to
maintain or preserve such person’s financial condition or to cause such
person to achieve any specified levels of operating results;
and
|
|
(F)
|
in
relation to any person referred to under paragraph (iii), on the date such
person is designated an Unrestricted Subsidiary by the Board of Directors,
such person is not a party to any agreement, contract, arrangement or
understanding with the Parent or any Restricted Subsidiary with terms
substantially less favorable to the Parent than those that might have been
obtained from persons who are not Affiliates of the
Parent;
|
|
(x)
|
either
a copy of the resolution of the Board of Directors or a true and correct
extract of the resolution of the Board of Diretors giving effect to such
redesignation; and
|
|
(y)
|
a
copy of the certificate signed by the Parent’s two authorized officers
certifying that:
|
|
(i)
|
no
default or event of default shall have occurred under the Parent 2009
Indenture and be continuing or would occur as a consequence of such
redesignation;
|
|
(ii)
|
the
Parent could incur at least €1.00 of additional Indebtedness under Section
4.3(a) of the Parent 2009 Indenture on a
pro forma
basis taking
into account such redesignation;
|
|
(i)
|
“
Restricted Subsidiary
”
means at any time any Subsidiary of the Parent other than an Unrestricted
Subsidiary; and
|
|
(j)
|
“
Non-Recourse Debt
” means
Indebtedness:
|
|
(i)
|
as
to which neither the Parent nor any Restricted
Subsidiary:
|
|
(A)
|
provides
any guarantee or credit support of any kind (including any undertaking,
guarantee, indemnity, agreement or instrument that would constitute
Indebtedness); or
|
|
(B)
|
is
directly or indirectly liable (as a guarantor or otherwise);
and
|
|
(ii)
|
no
default with respect to which (including any rights that the holders
thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or both) any holder
of any other Indebtedness of the Parent or any Restricted Subsidiary to
declare a default under such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated
maturity.
|
|
(k)
|
“
Indebtedness
” means,
with respect to any person on any date of determination (without
duplication):
|
|
(i)
|
the
principal of and premium (if any) in respect of indebtedness of such
person for borrowed money;
|
|
(ii)
|
the
principal of and premium (if any) in respect of obligations of such person
evidenced by bonds, debentures, notes or other similar
instruments;
|
|
(iii)
|
the
principal component of all obligations of such person in respect of
letters of credit, bankers’ acceptances or other similar instruments
(including reimbursement obligations with respect thereto except to the
extent such reimbursement obligation relates to a trade payable and such
obligation is satisfied within 30 days of incurrence of relevant
Indebtedness);
|
|
(iv)
|
the
principal component of all obligations of such person to pay the deferred
and unpaid purchase price of property (except trade payables), which
purchase price is due more than six months after the date of placing such
property in service or taking delivery and title
thereto;
|
|
(v)
|
Capitalized
Lease Obligations and all Attributable Indebtedness of such
person;
|
|
(vi)
|
the
principal component or liquidation preference of all obligations of such
person with respect to the redemption, repayment or other repurchase of
any Disqualified Stock or, with respect to any Subsidiary, any preferred
stock (but excluding, in each case, any accrued
dividends);
|
|
(vii)
|
the
principal component of all Indebtedness of other persons secured by a
Security on any asset of such person, whether or not such Indebtedness is
assumed by such person; provided, however, that the amount of such
Indebtedness will be the lesser of (a) the fair market value of such asset
at such date of determination and (b) the amount of such Indebtedness of
such other persons;
|
|
(viii)
|
the
principal component of Indebtedness of other persons to the extent
Guaranteed by such person; and
|
|
(ix)
|
to
the extent not otherwise included in this definition, net obligations of
such Person under Treasury Transactions (the amount of any such
obligations to be equal at any time to the termination value of such
agreement or arrangement giving rise to such obligation that would be
payable by such person at such
time).
|
|
The
amount of Indebtedness of any Person at any date will be the outstanding
balance at such date of all unconditional obligations as described above
and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such
date.
|
|
In
addition, “
Indebtedness
” of any
person shall include Indebtedness described in the preceding paragraph
that would not appear as a liability on the balance sheet of such person
if:
|
|
(i)
|
such
Indebtedness is the obligation of a partnership or Joint Venture that is
not a Restricted Subsidiary;
|
|
(ii)
|
such
person or a Restricted Subsidiary of such person is a general partner of
the Joint Venture (a “
General Partner
”);
and
|
|
(iii)
|
there
is recourse, by contract or operation of law, with respect to the payment
of such Indebtedness to property or assets of such person or a Restricted
Subsidiary of such person; and then such Indebtedness shall be included in
an amount not to exceed:
|
|
(A)
|
the
lesser of (x) the net assets of the General Partner and (y) the amount of
such obligations to the extent that there is recourse, by contract or
operation of law, to the property or assets of such person or a Restricted
Subsidiary of such person; or
|
|
(B)
|
if
less than the amount determined pursuant to clause (A) immediately above,
the actual amount of such Indebtedness that is recourse to such person or
a Restricted Subsidiary of such person, if the Indebtedness is evidenced
by a writing and is for a determinable amount and the related interest
expense shall be included in Consolidated Interest Expense to the extent
actually paid by the Parent or its Restricted
Subsidiaries.
|
|
(l)
|
“
Stated Maturity
” means,
with respect to any security, the date specified in such security as the
fixed date on which the payment of principal of such security is due and
payable, including pursuant to any mandatory redemption provision, but
shall not include any contingent obligations to repay, redeem or
repurchase any such principal prior to the date originally scheduled for
the payment thereof.
|
|
(m)
|
“
Capitalized Lease
Obligations
” means an obligation that is required to be classified
and accounted for as a capitalized lease for financial reporting purposes
in accordance with the Accounting Principles, and the amount of
Indebtedness represented by such obligation will be the capitalized amount
of such obligation at the time any determination thereof is to be made as
determined in accordance with the Accounting Principles, and the Stated
Maturity thereof will be the date of the last payment of rent or any other
amount due under such lease prior to the first date such lease may be
terminated without penalty.
|
|
(n)
|
“
Sale/Leaseback
Transaction
” means an arrangement relating to property now owned or
hereafter acquired whereby the Parent or a Restricted Subsidiary transfers
such property to a person and the Parent or a Restricted Subsidiary leases
it from such person.
|
|
(o)
|
“
Attributable
Indebtedness
” in
respect of a Sale/Leaseback Transaction means, as at the time of
determination, the present value (discounted at the interest rate borne by
the Parent Fixed Rate Notes, compounded semi-annually) of the total
obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale/Leaseback Transaction (including any
period for which such lease has been
extended).
|
|
(p)
|
“
Guarantee
” means any
obligation, contingent or otherwise, of any person directly or indirectly
guaranteeing any Indebtedness of any other person and any obligation,
direct or indirect, contingent or otherwise, of such
person:
|
|
(i)
|
to
purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness of such other person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise);
or
|
|
(ii)
|
entered
into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part);
provided, however
, that
the term “
Guarantee
” will not
include endorsements for collection or deposit in the ordinary course of
business. The term “
Guarantee
” used as a
verb has a corresponding meaning.
|
|
(q)
|
“
Consolidated
Interest Expense
”
means, for any period, the total interest expense of the Parent and its
consolidated Restricted Subsidiaries, whether paid or accrued, plus, to
the extent not included in such interest
expense:
|
|
(i)
|
interest
expense attributable to Capitalized Lease Obligations and the interest
portion of rent expense associated with Attributable Indebtedness in
respect of the relevant lease giving rise thereto, determined as if such
lease were a capitalized lease in accordance with GAAP and the interest
component of any deferred payment
obligations;
|
|
(ii)
|
amortization
of debt discount and debt issuance
cost;
|
|
(iii)
|
non-cash
interest expense;
|
|
(iv)
|
commissions,
discounts and other fees and charges owed with respect to letters of
credit and bankers’ acceptance
financing;
|
|
(v)
|
interest
actually paid by the Issuer or any such Restricted Subsidiary under any
Guarantee of Indebtedness or other obligation of any other
person;
|
|
(vi)
|
net
costs associated with the obligations of such person in respect of any
Treasury Transactions (including amortization of
fees);
|
|
(vii)
|
the
consolidated interest expense of such person and its Restricted
Subsidiaries that was capitalized during such
period;
|
|
(viii)
|
all
dividends paid or payable in cash, cash equivalents or Indebtedness or
accrued during such period on any series of Disqualified Stock of such
Person or on preferred Stock of its Restricted Subsidiaries payable to a
party other than the Parent or a Restricted Subsidiary;
and
|
|
(ix)
|
the
cash contributions to any employee stock ownership plan or similar trust
to the extent such contributions are used by such plan or trust to pay
interest or fees to any Person (other than the Parent) in connection with
Indebtedness incurred by such plan or trust; provided, however, that there
will be excluded therefrom any such interest expense of any Unrestricted
Subsidiary to the extent the related Indebtedness is not Guaranteed or
paid by the Parent or any Restricted
Subsidiary.
|
|
(r)
|
“
Disqualified
Stock
” means, with
respect to any person, any Capital Stock of such Person which by its terms
(or by the terms of any security into which it is convertible or for which
it is exchangeable) or upon the happening of any
event:
|
|
(i)
|
matures
or is mandatorily redeemable pursuant to a sinking fund obligation or
otherwise;
|
|
(ii)
|
is
convertible or exchangeable for Indebtedness or Disqualified Stock
(excluding Capital Stock which is convertible or exchangeable solely at
the option of the Parent or a Restricted Subsidiary);
or
|
|
(iii)
|
is
redeemable at the option of the holder of the Capital Stock thereof, in
whole or in part,
|
|
(s)
|
“
Trustee
” means The Bank
of New York Mellon, acting through its London Branch, or such other person
for the time being appointed as the “Trustee” under the Parent 2009
Indenture.
|
|
(a)
|
“
Rating Agency
”
means Moody’s or S&P and if Moody’s or S&P shall not
make a rating of the Parent Notes publicly available, an internationally
recognized securities rating agency or agencies, as the case may be, which
shall be substituted for Moody’s or S&P or each of them as the case
may be; and
|
|
(b)
|
“
Rating Date
” means the
date which is the day prior to the initial public announcement by the
Parent or the proposed acquirer that (i) the acquirer has entered into one
or more binding agreements with the Parent and/or shareholders of the
Parent that would give rise to a CME Change of Control or (ii) the
proposed acquirer has commenced an offer to acquire outstanding Voting
Stock of the Parent.
|
|
(a)
|
in
relation to an Original Lender, the amount in CZK set opposite its name
under the heading “Commitment” in Part II of Schedule 1 (
The Original Parties
)
and the amount of any other Commitment transferred to it under this
Agreement; and
|
|
(b)
|
in
relation to an Additional Lender, the amount in CZK indicated as its
Commitment in the relevant Accession Deed;
and
|
|
(c)
|
in
relation to any other Lender, the amount in CZK of any Commitment
transferred to it under this
Agreement,
|
|
(a)
|
any
member of the Parent Group or any of its advisers;
or
|
|
(b)
|
another
Finance Party, if the information was obtained by that Finance Party
directly or indirectly from any member of the Parent Group or any of its
advisers,
|
|
(i)
|
is
or becomes public information other than as a direct or indirect result of
any breach by that Finance Party of Clause 39 (
Confidentiality
);
|
|
(ii)
|
is
identified in writing at the time of delivery as non-confidential by any
member of the Parent Group or any of its advisers;
or
|
|
(iii)
|
is
known by that Finance Party before the date the information is disclosed
to it in accordance with paragraphs (a) or (b) above or is lawfully
obtained by that Finance Party after that date, from a source which is, as
far as that Finance Party is aware, unconnected with the Parent Group and
which, in either case, as far as that Finance Party is aware, has not been
obtained in breach of, and is not otherwise subject to, any obligation of
confidentiality.
|
|
(a)
|
purchases
by way of assignment or transfer;
|
|
(b)
|
enters
into any sub-participation in respect of;
or
|
|
(c)
|
enters
into any other agreement or arrangement having an economic effect
substantially similar to a sub-participation in respect
of,
|
|
(a)
|
which
has failed to make its participation in a Loan available or has notified
the Facility Agent that it will not make its participation in a Loan
available by the Utilisation Date of that Loan in accordance with
Clause 5.4 (
Lenders’
participation
);
|
|
(b)
|
which
has otherwise rescinded or repudiated a Finance Document;
or
|
|
(c)
|
with
respect to which an Insolvency Event has occurred and is
continuing,
|
|
(i)
|
its
failure to pay is caused by:
|
|
(A)
|
administrative
or technical error; or
|
|
(B)
|
a
Disruption Event; and
|
|
payment
is made within 3 Business Days of its due date;
or
|
|
(ii)
|
the
Lender is disputing in good faith whether it is contractually obliged to
make the payment in question.
|
|
(a)
|
a
material disruption to those payment or communications systems or to those
financial markets which are, in each case, required to operate in order
for payments to be made in connection with the Facility (or otherwise in
order for the transactions contemplated by the Finance Documents to be
carried out) which disruption is not caused by, and is beyond the control
of, any of the Parties; or
|
|
(b)
|
the
occurrence of any other event which results in a disruption (of a
technical or systems-related nature) to the treasury or payments
operations of a Party preventing that, or any other
Party:
|
|
(i)
|
from
performing its payment obligations under the Finance Documents;
or
|
|
(ii)
|
from
communicating with other Parties in accordance with the terms of the
Finance Documents,
|
|
(a)
|
air
(including, without limitation, air within natural or man-made structures,
whether above or below ground);
|
|
(b)
|
water
(including, without limitation, territorial, coastal and inland waters,
water under or within land and water in drains and sewers);
and
|
|
(c)
|
land
(including, without limitation, land under
water).
|
|
(a)
|
the
pollution or protection of the
Environment;
|
|
(b)
|
the
conditions of the workplace; or
|
|
(c)
|
the
generation, handling, storage, use, release or spillage of any substance
which, alone or in combination with any other, is capable of causing harm
to the Environment, including, without limitation, any
waste.
|
|
(a)
|
in
respect of a Lender, the office or offices notified by that Lender to the
Facility Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days’ written notice)
as the office or offices through which it will perform its obligations
under this Agreement; or
|
|
(b)
|
in
respect of any other Finance Party, the office in the jurisdiction in
which it is resident for tax
purposes.
|
|
(a)
|
the
letter dated 3 July 2009 and made among the Arranger, the Borrower, the
Facility Agent and the Security Agent setting out the fees referred to in
Clause 14 (
Fees
);
and
|
|
(b)
|
any
agreement setting out fees payable to a Finance Party under any other
Finance Document.
|
(a)
|
the
definition of “Material Adverse
Effect”;
|
|
(b)
|
paragraph (a)
of the definition of “Permitted
Transaction”;
|
|
(c)
|
the
definition of “Finance Document”;
|
|
(d)
|
paragraph (a)(iv)
of Clause 1.2 (
Construction
);
and
|
|
(e)
|
Clause 25
(
Events of
Default
) (other than Clause 25.18 (
Acceleration
)).
|
|
“
Finance Lease
” has the
meaning given to it in Clause 23.1 (
Financial
definitions
).
|
|
(a)
|
paragraph (a)(i)
of Clause 1.2 (
Construction
);
|
|
(b)
|
paragraph (c)
of the definition of Material Adverse Effect;
and
|
|
(c)
|
Clause 30
(
Conduct of business by
the Finance Parties
).
|
|
(a)
|
moneys
borrowed and debit balances at banks or other financial
institutions;
|
|
(b)
|
any
acceptance under any acceptance credit or bill discounting facility (or
dematerialised equivalent);
|
|
(c)
|
any
note purchase facility or the issue of bonds (but not Trade Instruments),
notes, debentures, loan stock or any similar
instrument;
|
(d)
|
the
amount of any liability in respect of Finance
Leases;
|
|
(e)
|
receivables
sold or discounted (other than any receivables to the extent they are sold
on a non-recourse basis and meet any requirement for de-recognition under
the Accounting Principles);
|
|
(f)
|
any
Treasury Transaction (and, when calculating the value of that Treasury
Transaction, only the marked-to-market value (or, if any actual amount is
due as a result of the termination or close-out of that Treasury
Transaction, that amount) shall be taken into
account);
|
|
(g)
|
any
counter-indemnity obligation in respect of a guarantee, bond, standby or
documentary letter of credit or any other instrument issued by a bank or
financial institution in respect of (i) an underlying liability (but not,
in any case, Trade Instruments) of an entity which is not a member of the
Group which liability would fall within one of the other paragraphs of
this definition or (ii) any liabilities of any member of the Group
relating to any post-retirement benefit
scheme;
|
|
(h)
|
any
amount raised by the issue of redeemable shares which are redeemable
(other than at the option of the issuer) before the Termination Date or
are otherwise classified as borrowings under the Accounting
Principles);
|
|
(i)
|
any
amount of any liability under an advance or deferred purchase agreement if
(i) one of the primary reasons behind entering into the agreement is
to raise finance or to finance the acquisition or construction of the
asset or service in question or (ii) the agreement is in respect of
the supply of assets or services and payment is due more than 180 days
after the date of supply;
|
|
(j)
|
any
amount raised under any other transaction (including any forward sale or
purchase, sale and sale back or sale and leaseback agreement) having the
commercial effect of a borrowing or otherwise classified as borrowings
under the Accounting Principles;
and
|
|
(k)
|
(without
double counting) the amount of any liability in respect of any guarantee
for any of the items referred to in paragraphs (a) to (j)
above.
|
|
(a)
|
it
has failed to make (or has notified a Party that it will not make) a
payment required to be made by it under the Finance Documents by the due
date for payment;
|
|
(b)
|
the
Facility Agent otherwise rescinds or repudiates a Finance
Document;
|
|
(c)
|
(if
the Facility Agent is also a Lender) it is a Defaulting Lender under
paragraph (a) or (b) of the definition of “
Defaulting Lender
”;
or
|
|
(d)
|
an
Insolvency Event has occurred and is continuing with respect to the
Facility Agent;
|
|
(i)
|
its
failure to pay is caused by:
|
|
(A)
|
administrative
or technical error; or
|
|
(B)
|
a
Disruption Event; and
|
|
(ii)
|
the
Facility Agent is disputing in good faith whether it is contractually
obliged to make the payment in
question.
|
|
(a)
|
is
dissolved (other than pursuant to a consolidation, amalgamation or
merger);
|
|
(b)
|
becomes
insolvent or is unable to pay its debts or fails or admits in writing its
inability generally to pay its debts as they become
due;
|
|
(c)
|
makes
a general assignment, arrangement or composition with or for the benefit
of its creditors;
|
|
(d)
|
institutes
or has instituted against it, by a regulator, supervisor or any similar
official with primary insolvency, rehabilitative or regulatory
jurisdiction over it in the jurisdiction of its incorporation or
organisation or the jurisdiction of its head or home office, a proceeding
seeking a judgment of insolvency or bankruptcy or any other relief under
any bankruptcy or insolvency law or other similar law affecting creditors’
rights, or a petition is presented for its winding-up or liquidation by it
or such regulator, supervisor or similar
official;
|
|
(e)
|
has
instituted against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law or
other similar law affecting creditors’ rights, or a petition is presented
for its winding-up or liquidation, and, in the case of any such proceeding
or petition instituted or presented against it, such proceeding or
petition is instituted or presented by a person or entity not described in
paragraph (d) above and:
|
|
(i)
|
results
in a judgment of insolvency or bankruptcy or the entry of an order for
relief or the making of an order for its winding-up or liquidation;
or
|
|
(ii)
|
is
not dismissed, discharged, stayed or restrained in each case within
30 days of the institution or presentation
thereof;
|
|
(f)
|
has
exercised in respect of it one or more of the stabilisation powers
pursuant to Part 1 of the Banking Act 2009 and/or has instituted
against it a bank insolvency proceeding pursuant to Part 2 of the
Banking Act 2009 or a bank administration proceeding pursuant to
Part 3 of the Banking Act
2009;
|
|
(g)
|
has
a resolution passed for its winding-up, official management or liquidation
(other than pursuant to a consolidation, amalgamation or
merger);
|
|
(h)
|
seeks
or becomes subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other similar
official for it or for all or substantially all its
assets;
|
|
(i)
|
has
a secured party take possession of all or substantially all its assets or
has a distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or substantially all
its assets and such secured party maintains possession, or any such
process is not dismissed, discharged, stayed or restrained, in each case
within 30 days thereafter;
|
|
(j)
|
causes
or is subject to any event with respect to it which, under the applicable
laws of the respective jurisdiction, has an analogous effect to any of the
events specified in paragraphs (a) to (i) above;
or
|
|
(k)
|
takes
any action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the foregoing
acts.
|
|
(a)
|
any
patents, trade marks, service marks, designs, business names, copyrights,
database rights, design rights, domain names, moral rights, inventions,
know-how and other intellectual property rights and interests (which may
now or in the future subsist), whether registered or unregistered;
and
|
|
(b)
|
the
benefit of all applications and rights to use such assets of a member of
the Group (which may now or in the future
subsist).
|
|
(a)
|
the
loan under the CET Loan Agreement;
|
|
(b)
|
the
loan under the Markiza Loan
Agreement;
|
|
(c)
|
any
Financial Indebtedness owed by a member of the Group to a member of the
Parent Group; and
|
|
(d)
|
any
Financial Indebtedness owed by a member of the Parent Group to a member of
the Group.
|
|
(a)
|
the
principle that equitable remedies may be granted or refused at the
discretion of a court and the limitation of enforcement by laws relating
to insolvency, reorganisation and other laws generally affecting the
rights of creditors;
|
|
(b)
|
the
time barring of claims under the Limitation Acts, the possibility that an
undertaking to assume liability for or indemnify a person against
non-payment of UK stamp duty may be void and defences of set-off or
counterclaim;
|
|
(c)
|
similar
principles, rights and defences under the laws of any Relevant
Jurisdiction; and
|
|
(d)
|
any
other matters which are set out as qualifications or reservations as to
matters of law of general application in the Legal
Opinions.
|
|
(a)
|
any
Original Lender;
|
|
(b)
|
any
bank, financial institution, trust, fund or other entity which has become
a Party as a Lender in accordance with Clause 7 (
Extension of Initial
Termination Date
) or Clause 26 (
Changes to the
Lenders
); and
|
|
(c)
|
any
Additional Lender,
|
|
(a)
|
the
business, operations, property or condition (financial or otherwise) of
the Borrower, the Group and/or the Parent Group taken as a
whole;
|
|
(b)
|
the
ability of an Obligor or the Obligors taken as a whole to perform their
obligations under the Finance
Documents;
|
|
(c)
|
the
validity or enforceability (subject to the Legal Reservations)
of any Finance Document or of any of the rights or remedies of any Finance
Party under any of the Finance Documents;
or
|
|
(d)
|
the
effectiveness or ranking (subject to the Legal Reservations) of
any Transaction Security granted or purporting to be granted pursuant to
any of the Finance Documents.
|
|
(a)
|
(subject
to paragraph (c) below) if the numerically corresponding day is not a
Business Day, that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one, or if there
is not, on the immediately preceding Business
Day;
|
|
(b)
|
if
there is no numerically corresponding day in the calendar month in which
that period is to end, that period shall end on the last Business Day in
that calendar month; and
|
|
(c)
|
if
an Interest Period begins on the last Business Day of a calendar month,
that Interest Period shall end on the last Business Day in the calendar
month in which that Interest Period is to
end.
|
|
(a)
|
in
relation to the Parent and each Key Obligor, audited consolidated or
unconsolidated (whichever is available) financial statements for its
Financial Year ended 31 December, 2008;
and
|
|
(b)
|
in
relation to an Additional Guarantor, its audited (if available) financial
statements delivered to the Facility Agent as required by Clause 28
(
Changes to the
Obligors
).
|
|
“
Parent Change of
Control
” means the occurrence of the following
events:
|
|
(a)
|
a
CME Change of Control; and
|
|
(b)
|
a
CME Rating Decline.
|
|
(a)
|
the
Parent Fixed Rate Notes;
|
|
(b)
|
the
3.50% senior convertible notes due 2013 issued by the Parent;
and
|
|
(c)
|
the
senior floating rate notes due 2014 issued by the
Parent.
|
|
(a)
|
an
acquisition by a member of the Group of an asset sold, leased, transferred
or otherwise disposed of by another member of the Group in circumstances
constituting a Permitted Disposal pursuant to paragraph (b) or (c) of
the definition thereof;
|
(b)
|
an
acquisition of shares or securities pursuant to a Permitted Share
Issue;
|
(c)
|
the
acquisition of Cash or Cash Equivalent
Investments;
|
|
(d)
|
the
incorporation or formation of a wholly-owned limited liability entity or
the acquisition of (i) 100 per cent. of the voting issued share
capital and economic interests represented by the issued share capital, or
(ii) in relation to the limited liability companies incorporated in the
Czech Republic or the Slovak Republic, ownership interest representing
100 per cent. of the registered capital, in each
case, on a fully diluted basis, in a limited liability entity with no
prior trading history and no material liabilities, where the aggregate
amount applied in subscribing for or otherwise acquiring shares or
ownership interest in such entities does not exceed CZK 100,000,000 (or
its equivalent in other currencies) in any Financial
Year;
|
|
(e)
|
any
acquisition for cash of (x) the entire business of any person, (y) assets
of any person the market value of which represents at least 66⅔
per cent. of the market value of all assets of such person, or (z) at
least 66⅔ per cent. plus one share or more of the voting issued share
capital and economic interests represented by the issued share capital (in
each case, on a fully diluted basis) in a limited liability company
where:
|
|
(i)
|
the
consideration and any Financial Indebtedness discharged by the purchaser
in connection with such acquisition or series of related acquisitions or
remaining in, and any assumed actual or contingent liability of, the
acquired company (or business) or any of its Subsidiaries at the date
of acquisition (the “
Total Purchase Price
”)
does not exceed CZK 300,000,000 (or its equivalent in other
currencies) in any Financial Year;
and
|
|
(ii)
|
no
actual or potential Event of Default has occurred and is continuing at the
time of, or will result from, the
acquisition;
|
|
(f)
|
any
acquisition constituting a Permitted Joint Venture;
or
|
|
(g)
|
any
other acquisition to which the Majority Lenders have given their consent
in writing under this Agreement,
|
|
(a)
|
the
Permitted Parent Holders;
|
|
(b)
|
any
Obligor;
|
|
(c)
|
each
Subsidiary of the Parent or of a Permitted Parent Holder;
and
|
|
(d)
|
any
Affiliates of any of the persons referred to in paragraphs (a) to (c)
above.
|
|
(a)
|
of stock in trade (including licences for content, formats and other
similar or related rights) or cash made by any member of the Group in the
ordinary course of business of the disposing entity as conducted on the
date of this Agreement;
|
|
(b)
|
of
any asset by a member of the Group (the “
Disposing Company
”) to
another member of the Group (the “
Acquiring Company
”), but
if:
|
|
(i)
|
the
Disposing Company is an Obligor, the Acquiring Company must be or become
an Obligor;
|
|
(ii)
|
the
Disposing Company is a Guarantor, the Acquiring Company (other than the
Borrower) must be a Guarantor guaranteeing at all times an amount no less
than that guaranteed by the Disposing
Company,
|
|
(c)
|
of
any assets from an Obligor to a member of the Group who is not an Obligor
provided that the aggregate amount transferred from an Obligor to a member
of the Group who is not an Obligor (net of the value of any assets
transferred from such member of the Group who is not an Obligor to such
Obligor in connection with the same transaction or series of transactions)
does not exceed CZK 100,000,000 (or its equivalent in other currencies) in
the Financial Year ended on 31 December 2009 or CZK 200,000,000 (or its
equivalent in other currencies) in any Financial Year (other than the
Financial Year ended on 31 December
2009);
|
|
(d)
|
of
assets (other than shares or businesses) in exchange for other assets
comparable or superior as to type, value or
quality;
|
|
(e)
|
of
obsolete or redundant:
|
|
(i)
|
vehicles;
|
|
(ii)
|
plant;
|
|
(iii)
|
equipment;
or
|
|
(iv)
|
other
assets,
|
|
(f)
|
of
Cash or Cash Equivalent Investments not otherwise prohibited by this
Agreement;
|
(g)
|
to
a Permitted Joint Venture that is a Joint Venture
Investment;
|
|
(h)
|
of
assets pursuant to a compulsory acquisition by any governmental
authority;
|
|
(i)
|
constituted
by a licence of intellectual property rights permitted under
Clause 24.21 (
Intellectual
Property
);
|
|
(j)
|
arising
as a result of any Permitted Security (but not the enforcement
thereof);
|
|
(k)
|
required
under the Finance Documents;
|
|
(l)
|
of
assets for cash where the higher of the book value and net consideration
receivable (when aggregated with the higher of the book value and net
consideration received for any other sale, lease, licence, transfer or
other disposal not allowed under the preceding paragraphs) does not exceed
(i) CZK 100,000,000 (or its equivalent in other currencies) in the
Financial Year ended on 31 December 2009; and (ii) CZK 200,000,000 (or its
equivalent in other currencies) in any Financial Year other than the
Financial Year ended on 31 December 2009 of the
Borrower;
|
|
(m)
|
of
rights related to hedging arrangements provided the requirements of the
Hedging Letter are met;
|
|
(n)
|
of
receivables: (i) on recourse terms to the extent the same arises in
connection with Permitted Financial Indebtedness; or (ii) pursuant to the
Factoring Facility Agreement; and
|
|
(o)
|
any
other sale, lease, licence, transfer or other disposal to which the
Majority Lenders have given their consent in
writing,
|
|
(a)
|
arising
under the Finance Documents;
|
|
(b)
|
arising
under a foreign exchange transaction for spot or forward delivery entered
into in connection with protection against fluctuation in currency rates
where that foreign exchange exposure arises in the ordinary course of
business of the respective member of the Group as conducted on the date of
this Agreement, but not a foreign exchange transaction solely for
investment or speculative purposes;
|
|
(c)
|
arising
under a Permitted Loan or a Permitted Guarantee or as permitted by Clause
24.25 (
Treasury
Transactions
);
|
|
(d)
|
of
any person acquired by any member of the Group after the date of this
Agreement which is incurred under arrangements in existence at the date of
acquisition, but not incurred or increased or having its maturity date
extended in contemplation of, or since, that
acquisition;
|
|
(e)
|
under
finance or capital leases of vehicles, plant, equipment or computers, or
mortgage financings or purchase money obligations with respect to assets
other than shares or other investments, in each case incurred for the
purpose of financing all or any part of the purchase price or cost of
construction or improvements of property used in the business of the
Group,
provided
that
the aggregate capital value of all such items so leased under
outstanding leases the Group does not exceed CZK 300,000,000 (or its
equivalent in any other currencies) at any
time;
|
|
(f)
|
arising
in respect of workers’ compensation claims, performance, surety and
similar bonds and completion guarantees provided by a member of the Group
in the ordinary course of its business as conducted on the date of this
Agreement;
|
|
(g)
|
arising
from the honouring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the
ordinary course of business of the respective member of the Group as
conducted on the date of this Agreement,
provided, however,
that
such Financial Indebtedness is extinguished within five Business Days of
its incurrence;
|
|
(h)
|
arising
under the Factoring Facility Agreement or pursuant to paragraph (b) of the
definition of “Permitted Security”;
|
|
(i)
|
refinancing
any Financial Indebtedness otherwise permitted under this definition, so
long as the maximum amount available thereunder shall not be
increased;
|
|
(j)
|
arising
under a loan provided by the Parent or a Restricted Subsidiary to a member
of the Group which is a Restricted
Subsidiary;
|
|
(k)
|
not
permitted by the preceding paragraphs or as a Permitted Transaction and
the outstanding principal amount of which does not exceed
CZK 100,000,000 (or its equivalent in any other currencies) in
aggregate for the Group at any time;
and
|
|
(l)
|
any
other Financial Indebtedness to which the Majority Lenders have given
their consent in writing under this
Agreement,
|
|
(a)
|
the
endorsement of negotiable instruments in the ordinary course of business
of the respective member of the Group as conducted on the date of this
Agreement;
|
|
(b)
|
any
guarantee, performance or similar bond or other obligation guaranteeing
performance by any member of the Group under any contract (other than a
contract that is or evidences Financial Indebtedness) entered into in the
ordinary course of business of the respective member of the Group as
conducted on the date of this
Agreement;
|
(c)
|
any
guarantee:
|
|
(i)
|
arising
under the Finance Documents; or
|
|
(ii)
|
issued
by a Key Obligor in respect of obligations of any other member of the
Group, provided that the aggregate of guarantees provided in any Financial
Year of the Borrower by the Key Obligors under this subparagraph (ii)
shall not exceed CZK 200,000,000 (or its equivalent in any other
currencies);
|
|
(d)
|
any
guarantee given in respect of the netting, or set-off or cash pooling
arrangements permitted pursuant to paragraph (b) of the definition of
“Permitted Security”;
|
|
(e)
|
any
guarantee given by a member of the Group in respect of or to secure
obligations of a Permitted Joint Venture to the extent the maximum
contingent liability thereunder is a Joint Venture
Investment;
|
|
(f)
|
any
guarantee given to any relevant tax authority in respect of excise taxes,
export duties or other such taxes, charges, duties or imposts payable by a
member of the Group in the ordinary course of its business as conducted on
the date of this Agreement;
|
|
(g)
|
any
guarantee given by a member of the Group in respect of or to secure
obligations pursuant to any programming, production, distribution, format
or other intellectual or similar rights or capital equipment or other
assets used in the ordinary course of its business as conducted on the
date of this Agreement and not to exceed CZK 200,000,000 (or its
equivalent in any other currencies) in aggregate for the Group at any
time;
|
|
(h)
|
any
joint and several obligation of Markiza to fund payments to PMT s.r.o.
pursuant to a guarantee agreement between Markiza and PMT s.r.o., dated 23
January 2004;
|
|
(i)
|
any guarantee which constitutes Permitted Financial
Indebtedness;
|
|
(j)
|
any guarantee given in connection with a Permitted Acquisition or a
Permitted Disposal, provided that maximum contingent obligation of any
member of the Group under any such guarantee shall not exceed the net
consideration paid or received in such Permitted Acquisition or Permitted
Disposal;
|
|
(k)
|
any guarantee or reimbursement obligations in respect of any letter
of credit issued by a bank or other financial institution permitted under
the definition of Permitted Financial Indebtedness, provided that the
maximum contingent obligation of any member of the Group under any such
guarantee shall not exceed the maximum contingent obligation of such bank
or such other financial institution under the respective letter of
credit;
|
|
(l)
|
any guarantee not permitted by the preceding paragraphs or as part of
a Permitted Transaction and where the maximum aggregate contingent
liability of all such guarantees under this paragraph (l) (together with
any loans under paragraph (g) of the definition of “Permitted Loan”) do
not exceed CZK 100,000,000 (or its equivalent in any other currencies) in
aggregate for the Group at any time; and
|
|
(m)
|
any other guarantee to which the Majority Lenders have given their
consent in writing under this Agreement,
|
|
(a)
|
the
Joint Venture is incorporated, or established, and carries on its
principal business, in the European Union or the United States of
America;
|
|
(b)
|
the
Joint Venture is engaged in a business substantially the same as that
carried on by the Group;
|
|
(c)
|
in
any Financial Year of the Borrower, the aggregate (the “
Joint Venture
Investment
”) of:
|
|
(i)
|
all
amounts subscribed for shares in, lent to, or invested in all such Joint
Ventures by the Group;
|
|
(ii)
|
the
contingent liabilities of the members of the Group under any guarantee
given in respect of the liabilities of any such Joint Venture;
and
|
|
(iii)
|
the
market value of any assets transferred by the members of the Group to any
such Joint Venture,
|
|
(d)
|
any
other Joint Venture to which the Majority Lenders have given their consent
in writing under this Agreement,
|
|
(a)
|
any
trade credit extended by a member of the Group to its customers on normal
commercial terms and in the ordinary course of its trading
activities;
|
|
(b)
|
Financial
Indebtedness which is referred to in the definition of, or otherwise
constitutes, Permitted Financial
Indebtedness;
|
|
(c)
|
any
loan made for the purposes of enabling an Obligor to meet its payment
obligations under the Finance
Documents;
|
|
(d)
|
a loan made by a member of the Group to a Key Obligor or by any
member of the Group which is not an Obligor to another member of the Group
which is not an Obligor;
|
|
(e)
|
a
loan made by the Borrower or Markiza to an employee or director of the
Borrower or Markiza, as applicable, if the amount of that loan when
aggregated with the amount of all loans to employees and directors by the
Borrower and Markiza does not exceed CZK 100,000,000 (or its equivalent in
any other currencies) at any time;
|
|
(f)
|
any
loan which is a Joint Venture Investment permitted by Clause 24.9
(
Joint
Ventures
);
|
|
(g)
|
any
loan made by the Borrower or Markiza so long as the aggregate amount of
the Financial Indebtedness under any such loans (together with any
guarantees under paragraph (l) of the definition of Permitted Guarantee)
does not exceed CZK 100,000,000 (or its equivalent in other currencies) at
any time;
|
|
(h)
|
an
Inter-Group Loan or an Intra-Group Loan, in each case disclosed in the
Group Structure Chart;
|
|
(i)
|
payroll,
travel and similar advances to cover matters that are expected at the time
of such advances ultimately to be treated as expenses for accounting
purposes and that:
|
|
(i)
|
are
so treated; and
|
|
(ii)
|
are
made in the ordinary course of business of the respective member of the
Group as conducted on the date of this Agreement and consistent with its
past practices; and
|
|
(j)
|
any
other loan to which the Majority Lenders have given their consent in
writing under this Agreement,
|
|
(a)
|
each
beneficial owner of the Parent’s Class B Common Stock on September 17,
2009;
|
|
(b)
|
family
members of any beneficial holder of the Parent’s Class B Common Stock on
September 17, 2009;
|
|
(c)
|
trusts,
the only beneficiaries of which are persons or entities described in (a)
and (b) above; and
|
|
(d)
|
partnerships,
corporations, or limited liability companies which are controlled by the
persons or entities described in (a) or (b)
above.
|
|
(a)
|
any
lien arising by operation of law in the ordinary course of business of a
member of the Group as conducted on the date of this Agreement and not as
a result of any default or omission by a member of the
Group;
|
|
(b)
|
any
netting, set-off or cash pooling arrangement entered into by a member of
the Group in the ordinary course of its banking arrangements for the
purpose of netting debit and credit balances of the members of the Parent
Group but only so long as:
|
|
(i)
|
such
arrangement does not permit credit balances of the members of the Group
exceeding in aggregate CZK 200,000,000 (or its equivalent in other
currencies) at any one time to be netted or set off against debit balances
of any other person; and
|
|
(ii)
|
such
arrangement does not give rise to Security or Quasi-Security over the
assets of any member of the Group other than over the credit balances
referred to in sub-paragraph (i) in favour of the cash-pooling
bank;
|
|
(c)
|
any
Security or Quasi-Security over or affecting any asset acquired (including
by any acquisition by means of a merger or consolidation with or into a
member of the Group) by a member of the Group (whether before or after the
date of this Agreement), if:
|
|
(i)
|
the
Security or Quasi-Security was not created in contemplation of the
acquisition of that asset by that member of the
Group;
|
|
(ii)
|
the
principal amount secured has not been increased in contemplation of or
(otherwise than by capitalisation of interest) since the acquisition of
that asset by that member of the Group;
and
|
|
(iii)
|
except to the extent the Security or Quasi-Security is otherwise
permitted under any other paragraphs of this definition of “Permitted
Security”, the Security or Quasi-Security is removed or discharged within
six months of the date of acquisition of such
asset;
|
|
(d)
|
any
Security arising under any retention of title, hire purchase or
conditional sale arrangement or arrangements having similar effect in
respect of goods supplied to a member of the Group in the ordinary course
of its business as conducted on the date of this Agreement and on the
supplier’s standard or usual terms and not arising as a result of any
default or omission by a member of the
Group;
|
|
(e)
|
any
Security or Quasi-Security over documents of title and goods as part of a
documentary credit transaction entered into in the ordinary course of
business of the respective member of the Group as conducted on the date of
this Agreement;
|
|
(f)
|
any
Quasi-Security arising as a result of a disposal which is a Permitted
Disposal;
|
|
(g)
|
any
Security over shares in a Permitted Joint Venture to secure obligations of
a member of the Group in relation to the Joint Venture to the other
shareholders in the Permitted Joint
Venture;
|
|
(h)
|
any
Security, arising by operation of law in respect of Tax, being contested
in good faith where adequate reserves have been made for the payment of
such Tax and any costs associated with contesting such
Tax;
|
|
(i)
|
any
Security securing Financial Indebtedness and other obligations incurred
under paragraph (k) of the definition of Permitted Financial Indebtedness,
provided that the book value or independently appraised market value of
the assets which are subject to such Security does not exceed 100% of such
Financial Indebtedness;
|
|
(j)
|
pledges
or deposits by a member of the Group under workmen’s compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits
in connection with bids, tenders, contracts (other than for the payment of
Financial Indebtedness) or leases of real property and/or equipment to
which that member of the Group is a party, or deposits to secure public or
statutory obligations of a member of the Group or deposits of cash or
government obligations to secure surety or appeal bonds to which a member
of the Group is a party, or deposits as security for taxes contested in
good faith or import or customs duties or for the payment of rent, in each
case incurred in the ordinary course of business of the respective member
of the Group as conducted on the date of this
Agreement;
|
|
(k)
|
in
favour of issuers of surety or performance bonds or letters of credit or
bankers’ acceptances issued pursuant to the request of and for the account
of a member of the Group in the ordinary course of its
business;
|
|
(l)
|
any
Security or Quasi-Security securing the Hedging Agreement so long as the
related Financial Indebtedness is, and is permitted to be under this
Agreement, secured by Security on the same property securing such Hedging
Agreement;
|
|
(m)
|
judgment
Security not giving rise to an Event of Default so long as such Security
of Quasi-Security is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such
judgment have not been finally terminated or the period within which such
proceedings may be initiated has not
expired;
|
|
(n)
|
any
Security for the purposes of securing the payment of all or a part of the
purchase price of, or finance or capital lease obligations with respect
to, assets or property acquired or constructed in the ordinary course of
business of the respective member of the Group as conducted on the date of
this Agreement;
provided
that:
|
|
(i)
|
the
aggregate principal amount of Financial Indebtedness secured by such
Security or Quasi-Security is otherwise permitted to be incurred under
this Agreement and does not exceed the cost of assets or property so
acquired or constructed; and
|
|
(ii)
|
such
Security or Quasi-Security are created within 180 days of construction or
acquisition of such assets or property and do not encumber any other
assets or property of any member of the Group other than such assets or
property and assets affixed or appurtenant
thereto;
|
|
(o)
|
any
Security or Quasi-Security existing on the date of this Agreement and set
out in Schedule 12 (
Existing
Security
);
|
|
(p)
|
any
Security or Quasi-Security over or affecting any asset of any company
which becomes a member of the Group after the date of this Agreement,
where the Security or Quasi-Security is created prior to the date on which
that company becomes a member of the Group
if:
|
|
(i)
|
the
Security or Quasi-Security was not created in contemplation of the
acquisition of that company;
|
|
(ii)
|
the
principal amount secured has not increased in contemplation of or since
the acquisition of that company;
and
|
|
(iii)
|
except to the extent the Security or Quasi-Security is otherwise
permitted under any other paragraphs of this definition of “Permitted
Security”, the Security or Quasi-Security is removed or discharged within
6 months of that company becoming a member of the
Group;
|
|
(q)
|
any
Security or Quasi-Security securing Permitted Financial Indebtedness
incurred to refinance Financial Indebtedness that was previously so
secured,
provided
that any such Security or Quasi-Security is limited to all or part of the
same property or assets (plus improvements, replacement accessions,
proceeds or dividends or distributions in respect thereof) that secured
(or, under the written arrangements under which the original Security or
Quasi-Security arose, could secure) the Financial Indebtedness being
refinanced or is in respect of property that is the security for a
Permitted Security hereunder;
|
|
(r)
|
any
Security or Quasi-Security of a lessor under any finance or capital lease
obligations or operating lease entered into in the ordinary course of
business of the respective member of the Group as conducted on the date of
this Agreement;
|
|
(s)
|
any
Transaction Security;
|
|
(t)
|
any
other Security or Quasi-Security not permitted by the preceding paragraphs
or as a Permitted Transaction and the outstanding principal amount secured
thereunder does not exceed CZK 100,000,000 (or its equivalent in any
other currencies) in aggregate for the Group at any time;
and
|
|
(u)
|
any
Security to which the Majority Lenders have given their consent in writing
under this Agreement,
|
|
(a)
|
any
disposal required, Financial Indebtedness incurred, guarantee, indemnity
or Security or Quasi-Security given, or other transaction arising, under
the Finance Documents;
|
|
(b)
|
the
solvent liquidation, winding-up or reorganisation of any member of the
Group which is not an Obligor so long as any payments or assets
distributed as a result of such liquidation, winding-up or reorganisation
are distributed to other members of the
Group;
|
|
(c)
|
transactions
(other than (i) any sale, lease, license, transfer or other disposal
and (ii) the granting or creation of Security or the incurring or
permitting to subsist of Financial Indebtedness) conducted in the ordinary
course of business of the respective member of the Group as conducted on
the date of this Agreement on arm’s length
terms;
|
|
(d)
|
the
solvent amalgamation, demerger, merger, consolidation, corporate
reconstruction or reorganisation (by way of voluntary arrangement, scheme
of arrangement or otherwise) as between one member of the Group and
another member of the Group and in the case of any such transaction
involving an Obligor (which is a member of the Group), where such Obligor
remains as the surviving entity;
|
|
(e)
|
the
funding obligations of Markiza pursuant to an agreement on data provision
between Markiza and PMT s.r.o., dated 15 August
2004;
|
|
(f)
|
(i) the payment of dividends or the making of any other distributions
on the capital stock of any Key Obligor or CME Slovak Holdings N.V. or the
payment of any indebtedness or other obligations owed by any Key Obligor
or CME Slovak Holdings N.V. to the Parent or any Restricted Subsidiary (as
defined in the definition of “CME Change of Control”); or (ii) the making
by any Key Obligor, CME Slovak Holdings N.V. or any other member of the
Group which becomes a Restricted Subsidiary of any loans or advances to
the Parent or any Restricted Subsidiary; or (iii) the transfer of any of
property or assets of any Key Obligor, CME Slovak Holdings N.V. or any
member of the Group which becomes a Restricted Subsidiary to the Parent or
any Restricted Subsidiary subject (in relation to any asset which is, or
is intended to be, the subject of the Transaction Security) to any
restrictions contained in the Transaction Security Documents;
and
|
|
(g)
|
any transaction to which the Majority Lenders have given their
consent in writing under this Agreement,
|
|
(a)
|
the
offered rate, if any, for CZK and a period comparable to the Interest
Period of that Loan appearing as of the Specified Time on the Quotation
Day on the PRBO page of the Reuters Monitor Money Rates Service;
or
|
|
(b)
|
if
no such quotation appears for CZK and such period on the relevant page,
the rate appearing as of the Specified Time on the Quotation Day on any
other page of the Reuters Monitor Money Rates Service displaying such rate
for deposits in CZK for such period and replacing the PRBO page;
or
|
|
(c)
|
if
no such rate is published for CZK and such period by the Reuters Monitor
Money Rates Service as of the Specified Time on the Quotation Day, the
Reference Bank Rate as of the Specified Time on the Quotation Day for such
period, or a period as close as possible to such
period.
|
|
(a)
|
its
jurisdiction of incorporation;
|
|
(b)
|
any
jurisdiction where any material asset subject to or intended to be subject
to the Transaction Security to be created by it is
situated;
|
|
(c)
|
any
jurisdiction where it conducts a material part of its business;
and
|
|
(d)
|
the
jurisdiction whose laws govern the perfection of any of the Transaction
Security Documents entered into by
it.
|
|
(a)
|
each
date set out in paragraph (a) of Clause 6.1 (
Repayment
);
or
|
|
(b)
|
following
the exercise of the Extension Option in accordance with Clause 7 (
Extension of Initial
Termination Date
) and the extension of the Termination Date
becoming effective in respect of an Extending Lender (or Extending
Lenders) in accordance with paragraph (d) of Clause 7.3 (
Notice to Lenders
),
each date set out in paragraph (b) of Clause 6.1 (
Repayment
).
|
|
(a)
|
which
is controlled, directly or indirectly, by the first-mentioned person,
company or corporation; or
|
|
(b)
|
which
owns directly or indirectly at least half of the issued share capital or
the ownership or any other equity interests or similar right of ownership;
or
|
|
(c)
|
which
is a subsidiary of another subsidiary of the first-mentioned person,
company or corporation,
|
|
(d)
|
in
relation to a person incorporated (or established) under Dutch law, a
"
dochtermaatschappij
"
within the meaning of Section 2:24a of the Dutch Civil Code (regardless
whether the shares or voting rights on the shares in such company are held
directly or indirectly through another "
dochtermaatschappij
").
|
|
(a)
|
if
the Extension Option is not exercised in accordance with Clause 7 (
Extension of Initial
Termination Date
) or the extension of the Termination Date does not
become effective in respect of an Extending Lender (or Extending Lenders)
in accordance with paragraph (d) of Clause 7.3 (
Notice to Lenders
), the
Initial Termination Date; and
|
|
(b)
|
if
the Extension Option is exercised in accordance with Clause 7 (
Extension of Initial
Termination Date
) and the extension of the Termination Date becomes
effective in respect of an Extending Lender (or Extending Lenders) in
accordance with paragraph (d) of Clause 7.3 (
Notice to Lenders
),
(i) the Extended Termination Date in relation to the Loans (or
relevant parts of the Loans) made by the Extending Lenders and (ii) the
Initial Termination Date in relation to the Loans (or relevant parts of
the Loans) made by Lenders other than the Extending Lenders (if
any).
|
|
(a)
|
the
proposed Transfer Date specified in the relevant Assignment Agreement or
Transfer Certificate; and
|
|
(b)
|
the
date on which the Facility Agent executes the relevant Assignment
Agreement or Transfer
Certificate.
|
1.2
|
Construction
|
|
(a)
|
Unless
a contrary indication appears, a reference in this Agreement or any other
Finance Document to:
|
|
(i)
|
the
“
Facility
Agent
”, the “
Arranger
”, any “
Finance Party
”, any
“
Hedge
Counterparty
”, any “
Lender
”, any “
Obligor
”, any “
Party
”, any “
Secured Party
”, the
“
Security Agent
”
or any other person shall be construed so as to include its successors in
title, permitted assigns and permitted transferees and, in the case of the
Security Agent, any person for the time being appointed as Security Agent
or Security Agents in accordance with the Finance
Documents;
|
|
(ii)
|
a
document in “
agreed
form
” is a document which is previously agreed in writing by or on
behalf of the Borrower and the Facility Agent or, if not so agreed, is in
the form specified by the Facility
Agent;
|
|
(iii)
|
“
assets
” includes present
and future properties, revenues and rights of every
description;
|
|
(iv)
|
a
“
Finance
Document
”, a “
Transaction Document
” or
any other agreement or instrument is a reference to that Finance Document,
Transaction Document or other agreement or instrument as amended, novated,
supplemented, extended or
restated;
|
|
(v)
|
“
guarantee
” means (other
than in Clause 20 (
Guarantee and
Indemnity
)) any guarantee, letter of credit, bond, indemnity or
similar assurance against loss, or any obligation, direct or indirect,
actual or contingent, to purchase or assume any indebtedness of any person
or to make an investment in or loan to any person or to purchase assets of
any person where, in each case, such obligation is assumed in order to
maintain or assist the ability of such person to meet its
indebtedness;
|
|
(vi)
|
“
indebtedness
” includes
any obligation (whether incurred as principal or as surety) for the
payment or repayment of money, whether present or future, actual or
contingent;
|
|
(vii)
|
a
“
person
” includes
any individual, firm, company, corporation, government, state or agency of
a state or any association, trust, joint venture, consortium or
partnership (whether or not having separate legal
personality);
|
|
(viii)
|
a
“
regulation
”
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law) of any governmental,
intergovernmental or supranational body, agency, department or of any
regulatory, self-regulatory or other authority or
organisation;
|
|
(ix)
|
“
shares
” issued by the
Borrower or Markiza includes ownership interest or other forms of
participation in the Borrower or Markiza, as
applicable;
|
|
(x)
|
a
provision of law is a reference to that provision as amended or
re-enacted; and
|
|
(xi)
|
a
time of day is a reference to Prague
time.
|
|
(b)
|
Section,
Clause and Schedule headings are for ease of reference
only.
|
|
(c)
|
Unless
a contrary indication appears, a term used in any other Finance Document
or in any notice given under or in connection with any Finance Document
has the same meaning in that Finance Document or notice as in this
Agreement.
|
|
(d)
|
A
Default (other than an Event of Default) is “
continuing
” if it has
not been remedied or waived and an Event of Default is “
continuing
” if it has
not been remedied or waived.
|
1.3
|
Czech
terms
|
|
(a)
|
a
novation includes
privativní novace
and
kumulativní
novace
;
|
|
(b)
|
a
Security includes
zástavní právo
,
zádržné právo
,
za
jišťovací
p
ř
evod práva
, and
za
jišťovací
postoupení
pohledávky
;
|
|
(c)
|
a
bankruptcy or insolvency includes
insolvenční řízení,
konkurs, reorganizace, and
nucená
správa
;
|
|
(d)
|
being
bankrupt or insolvent includes being
v úpadku
,
v hrozícím úpadku
,
p
ředlužený
,
pla
tebně
neschopný
,
v konkurzu, v
reorganizaci
, and
v n
ucené
správě
;
|
|
(e)
|
an
expropriation, attachment, sequestration, distress, execution or analogous
process includes
vyvlastn
ění
,
exekuce
and
výkon
rozhodnutí
;
|
|
(f)
|
winding-up,
dissolution, administration or reorganisation includes
likvidace
,
zrušení s likvidací
,
zrušení bez likvidace
bez právního nástupce
,
insolvenční
řízení
,
konkurs
, reorganizace and
nucená
správa
;
|
|
(g)
|
a
receiver, administrator, administrative receiver, compulsory manager or
similar officer includes
likvidátor
,
inslovenční
správce
(including
předběžný
správce
)
,
nucený správce
, and
exekutor
;
|
|
(h)
|
a
moratorium includes
reorganizace
and
moratorium
;
and
|
|
(i)
|
constitutional
documents includes
společenská
smlouva,
zakladatelská listina
,
zakladatelská
smlouva
,
zřizovací
listina
,
statut
, and
stanovy
.
|
1.4
|
Dutch
terms
|
|
(a)
|
a
necessary action to authorise where applicable, includes without
limitation:
|
|
(i)
|
any
action required to comply with the Works Councils Act of the Netherlands
(
Wet op de
ondernemingsraden
); and
|
|
(ii)
|
obtaining
a positive and unconditional advice (
advies
) from the
competent works council(s);
|
|
(b)
|
gross
negligence means
grove
schuld
;
|
|
(c)
|
a
security interest includes any mortgage (
hypotheek
), pledge
(
pandrecht
),
retention of title arrangement (
eigendomsvoorbehoud
),
privilege (
voorrecht
), right of
retention (
recht van
retentie
), right to reclaim goods (
recht van
reclame
), and, in
general, any right in rem (
beperkte recht
),
created for the purpose of granting security (
goederenrechtelijk
zekerheidsrecht
);
|
|
(d)
|
wilful
misconduct means
opzet
;
|
|
(e)
|
a
winding-up, administration or dissolution (and any of those terms)
includes a Dutch entity being declared bankrupt (
failliet verklaard
) or
dissolved (
ontbonden
);
|
|
(f)
|
a
moratorium includes
sursance van betaling
and granted a moratorium includes
surséance
verleend
;
|
|
(g)
|
any
step or procedure taken in connection with insolvency proceedings includes
a Dutch entity having filed a notice under section 36 of the Dutch Tax
Collection Act (
Invorderingswet
1990
);
|
|
(h)
|
an
administrative receiver includes a
curator
;
|
|
(i)
|
an
administrator includes a
bewindvoerder
;
and
|
|
(j)
|
an
attachment includes a
beslag
.
|
1.5
|
Slovak
terms
|
|
(a)
|
a
novation includes
privatívna novácia
and
kumulatívna
novácia
;
|
|
(b)
|
a Security includes
záložné
prá
vo,
zádržné
právo
,
zabezpečovací
prevod práva
, and
zabezpečovacie postúpenie
pohľadávky
;
|
|
(c)
|
a
bankruptcy or insolvency includes
konkurzné konanie
,
konkurz
,
reštrukturalizačné
konanie
,
reštrukturalizácia
, and
nútená
správa
;
|
|
(d)
|
being
bankrupt or insolvent includes being
v úpadku
,
predlžený
,
platobne neschopný
,
v konkurze
,
v reštrukturalizácii
,
and
v nútenej
správe
;
|
|
(e)
|
an
expropriation, attachment, sequestration, distress, execution or analogous
process includes
vyvlastnenie
,
exekúcia
and
výkon
rozhodnutia
;
|
|
(f)
|
winding-up,
dissolution, administration or reorganisation includes
likvidácia
,
zrušenie s likvidáciou
,
zrušenie bez likvidácie
bez právneho nástupcu
,
konkurzné konanie
,
konkurz
,
reštrukturalizačné
konanie
,
reštrukturalizácia
, and
nútená
správa
;
|
|
(g)
|
a
receiver, administrator, administrative receiver, compulsory manager or
similar officer includes
likvidátor
,
konkurzný správca
(including
predbežný správca
)
,
reštrukturalizačný sprá
vca
,
nútený správca
, and
súdny
exekútor
;
|
|
(h)
|
a
moratorium includes
reštrukturalizačné
konanie
and
reštrukturalizácia
;
and
|
|
(i)
|
constitutional
documents includes
spoločenská zmluva
,
zakladateľská
listina
,
zakladateľská
zmluva
,
zriaďovacia
listina
,
štatút
, and
stanovy
.
|
1.6
|
Third
party rights
|
|
(a)
|
Unless
expressly provided to the contrary in a Finance Document a person who is
not a Party has no right under the Contracts (Rights of Third Parties) Act
1999 (the “
Third Parties
Act
”) to enforce or enjoy the benefit of any term of this
Agreement.
|
|
(b)
|
Notwithstanding
any term of any Finance Document, the consent of any person who is not a
Party is not required to rescind or vary this Agreement at any
time.
|
2.
|
THE
FACILITY
|
2.1
|
The
Facility
|
2.2
|
Finance
Parties’ rights and obligations
|
|
(a)
|
The
obligations of each Finance Party under the Finance Documents are
several. Failure by a Finance Party to perform its obligations
under the Finance Documents does not affect the obligations of any other
Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party under the
Finance Documents.
|
|
(b)
|
The
rights of each Finance Party under or in connection with the Finance
Documents are separate and independent rights and any debt arising under
the Finance Documents to a Finance Party from an Obligor shall be a
separate and independent debt.
|
|
(c)
|
A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance
Documents.
|
2.3
|
Obligors’
Agent
|
|
(a)
|
Each
Obligor (other than the Borrower) by its execution of this Agreement or an
Accession Deed irrevocably appoints the Borrower to act on its behalf as
its agent in relation to the Finance Documents and irrevocably
authorises:
|
|
(i)
|
the
Borrower on its behalf to supply all information concerning itself
contemplated by this Agreement to the Finance Parties and to give all
notices and instructions, to execute on its behalf any Accession Deed, to
make such agreements and to effect the relevant amendments, supplements
and variations capable of being given, made or effected by any Obligor
notwithstanding that they may affect the Obligor, without further
reference to or the consent of that Obligor;
and
|
|
(ii)
|
each
Finance Party to give any notice, demand or other communication to that
Obligor pursuant to the Finance Documents to the Borrower (c/o the
Parent);
|
|
(b)
|
Every
act, omission, agreement, undertaking, settlement, waiver, amendment,
supplement, variation, notice or other communication given or made by the
Obligors’ Agent or given to the Obligors’ Agent under any Finance Document
on behalf of another Obligor or in connection with any Finance Document
(whether or not known to any other Obligor and whether occurring before or
after such other Obligor became an Obligor under any Finance Document)
shall be binding for all purposes on that Obligor as if that Obligor had
expressly made, given or concurred with it. In the event of any
conflict between any notices or other communications of the Obligors’
Agent and any other Obligor, those of the Obligors’ Agent shall
prevail.
|
3.
|
PURPOSE
|
3.1
|
Purpose
|
|
(a)
|
first,
refinancing all outstanding Financial Indebtedness of the
Borrower to Česká
spořitelna, a.s. (“
CSAS
”), under (i) the
CZK 1,200,000,000 facility agreement No. 2644/05/LCD dated 27 October
2005, as amended from time to time, and (ii) the CZK 250,000,000 facility
agreement No. 2645/05/LCD dated 27 October 2005, as amended from time to
time, in each case made between the Borrower as borrower and CSAS as
lender; and
|
|
(b)
|
second,
repayment of the outstanding principal of the loan under the CET Loan
Agreement up to the amount of CZK
1,550,000,000.
|
3.2
|
Monitoring
|
4.
|
CONDITIONS
OF UTILISATION
|
4.1
|
Initial
conditions precedent
|
4.2
|
Further
conditions precedent
|
|
(a)
|
no
Default is continuing or would result from the proposed Loan;
and
|
|
(b)
|
the
Repeating Representations to be made by each Obligor are true in all
material respects.
|
4.3
|
Maximum
number of Loans
|
|
(a)
|
The
Borrower may not deliver a Utilisation Request if, as a result of the
proposed Loan, seven (7) or more Loans would be
outstanding.
|
|
(b)
|
The
Borrower may not request that a Loan be
divided.
|
5.
|
UTILISATION
|
5.1
|
Delivery
of a Utilisation Request
|
5.2
|
Completion
of a Utilisation Request
|
|
(a)
|
the
proposed Utilisation Date is a Business Day within the Availability
Period;
|
|
(b)
|
the
currency and amount of the Loan comply with Clause 5.3 (
Currency and amount
);
and
|
|
(c)
|
the
proposed Interest Period complies with Clause 12 (
Interest
Periods
).
|
5.3
|
Currency
and amount
|
|
(a)
|
The
currency specified in a Utilisation Request must be
CZK.
|
|
(b)
|
The
amount of the proposed Loan must be at least CZK 300,000,000, or, if less,
the Available Facility.
|
5.4
|
Lenders’
participation
|
|
(a)
|
If
the conditions set out in this Agreement have been met, each Lender shall
make its participation in each Loan available by the Utilisation Date
through its Facility Office.
|
|
(b)
|
The
amount of each Lender’s participation in each Loan will be equal to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to making the Loan (for the avoidance of doubt, taking
into account (i) following the accession of an Additional Lender, the
Available Commitment of that Additional Lender, and (ii) following the
Increase Date applicable to any Original Lender, the increased Commitment
of that Original Lender).
|
5.5
|
Cancellation
of Commitments
|
6.
|
REPAYMENT
|
6.1
|
Repayment
|
|
(a)
|
The
Borrower shall repay the aggregate Loans by repaying on each Repayment
Date an amount which reduces the outstanding aggregate Loans by an amount
equal to the relevant percentage of all the Loans as at the close of
business in Prague on the last day of the Availability Period as set out
in the table below:
|
Repayment
Date
|
Repayment
Instalment
|
|
Date
falling twelve (12) Months from the date of this Agreement
|
15%
|
|
Date
falling eighteen (18) Months from the date of this
Agreement
|
15%
|
|
Date
falling twenty four (24) Months from the date of this
Agreement
|
15%
|
|
The
earlier of (i) date falling thirty (30) Months from the date of this
Agreement, and (ii) the Initial Termination Date
|
15%
|
|
Initial
Termination Date
|
40%
|
|
(b)
|
Notwithstanding
paragraph (a) above, in relation to each Extending Lender, following the
exercise of the Extension Option in accordance with Clause 7 (
Extension of Initial
Termination Date
) and the extension of the Initial Termination Date
becoming effective in respect of an Extending Lender (or Extending
Lenders) in accordance with paragraph (d) of Clause 7.3 (
Notice to Lenders
), the
Borrower shall further repay the aggregate of the Loans (or relevant parts
of the Loans in respect of which the Extension Option has been exercised)
borrowed from an Extending Lender (or Extending Lenders) in instalments by
repaying on each Repayment Date an amount which reduces the amount of such
outstanding aggregate Loans (or relevant parts of the Loans) by an amount
equal to the relevant percentage of all the Loans as at the close of
business in Prague on the last day of the Availability Period as set out
in the table below:
|
Repayment
Date
|
Repayment
Instalment
|
|
Date
falling twelve (12) Months from the date of this Agreement
|
15%
|
|
Date
falling eighteen (18) Months from the date of this
Agreement
|
15%
|
|
Date
falling twenty four (24) Months from the date of this
Agreement
|
15%
|
|
Date
falling thirty (30) Months from the date of this Agreement
|
15%
|
|
Date
falling thirty (36) Months from the date of this Agreement
|
15%
|
|
The
earlier of (i) the date falling forty two (42) Months from the date of
this Agreement, and (ii) the Extended Termination
Date
|
15%
|
|
Extended
Termination Date
|
10%
|
|
(c)
|
The
Borrower may not reborrow any part of the Facility which is
repaid.
|
6.2
|
Effect
of cancellation and prepayment on scheduled repayments and
reductions
|
|
(a)
|
If
any of the Loans are prepaid in accordance with Clause 8.3 (
Right of cancellation and
repayment in relation to a single Lender
) or Clause 8.1 (
Illegality
), the amount
of the repayment instalments for each Repayment Date falling after that
prepayment will reduce
pro rata
by the amount
of the Loan prepaid.
|
|
(b)
|
If
any of the Loans are prepaid in accordance with Clause 8.2 (
Voluntary
prepayment
)
, the amount of the
repayment instalments for each Repayment Date falling after that
prepayment will reduce in chronological order by the amount of the Loan
prepaid.
|
7.
|
EXTENSION
OF INITIAL TERMINATION DATE
|
7.1
|
Extension
Request
|
7.2
|
Completion
of the Extension Request
|
|
(a)
|
it
is delivered to the Facility Agent not later than the Specified Time on
the date falling not less than 60 days (but not more than 90 days) before
the Extension Option Date;
|
|
(b)
|
it
specifies the Extension Fee at the rate agreed between the Borrower and
the Facility Agent; and
|
|
(c)
|
it
includes confirmation from the Borrower that the Repeating Representations
are true in all material respects and that no Default or Event of Default
has occurred, in each case in form and content satisfactory to the
Facility Agent (acting reasonably).
|
7.3
|
Notice
to Lenders
|
|
(a)
|
Upon
receipt of the duly completed Extension Request, the Facility Agent shall
promptly notify each Lender of such Extension Request. After
such notice is received from the Facility Agent, each Lender shall, not
less than 30 days before the Extension Option Date, and in its absolute
discretion, give written notice confirming either
that:
|
|
(i)
|
it
does not consent to the extension requested and wishes to be repaid its
share of the Loans in full on the Initial Termination Date (and whether,
in the alternative, it is willing to transfer such share of the Loans by
way of a Transfer Certificate); or
|
|
(ii)
|
it
is willing to participate in the extension (in whole or in part) and for
the purpose of paragraph (c) below, whether and the extent to which (A)
notwithstanding such consent, it wishes to decrease its participation in
any Loan (and whether it is willing to do so by way of a Transfer
Certificate) or (B) it is willing to increase its participation in any
Loan by way of a Transfer
Certificate.
|
|
(b)
|
If
the Facility Agent does not receive notice from a Lender by the time limit
specified above in paragraph (a) of this Clause 7.3 (
Notice to Lenders
),
such Lender shall be deemed not to have consented to the extension
requested. Subject to receipt by the Facility Agent of
sufficient notice pursuant to paragraph (a) of this Clause 7.3 (
Notice to Lenders
) and
otherwise to the extent reasonably practicable, the Facility Agent shall,
not less than 10 Business Days before the Extension Option Date, inform
the Borrower and the Extending Lenders of (i) the amount of the
Facility and (ii) each Extending Lender’s participation in the Loans, in
each case, which is to apply with effect from the Initial Termination
Date.
|
|
(c)
|
Each
Lender which has indicated it does not consent to the Extension Request,
or is deemed not to have consented to the Extension Request, or has
consented to the Extension Request but wishes to reduce its participation
in any Loan, in each case, in accordance with paragraphs (a) and (b)
above:
|
|
(i)
|
may
upon invitation by the Facility Agent and only if agreed to by such
Lender, be required to transfer its (or any part of its) participation in
such Loan to a Transferee designated by the Facility Agent, such transfer
to be made in accordance with and subject to the provisions of Clause 26
(
Changes to the
Lenders
) (except for Clause 26.3 (
Assignment or transfer
fee
) which shall not apply to any transfer pursuant to this
sub-paragraph (i)) provided that the relevant Transfer Date for such
transfer shall be the Initial Termination Date;
or
|
|
(ii)
|
shall:
|
|
(A)
|
to
the extent its (or any part of its) participation in such Loan is not
transferred under paragraph (i)
above;
|
|
(B)
|
to
the extent its (or any part of its) participation in any Loans is not
being retained by such Lender pursuant to paragraph (a)(ii) of this
Clause; or
|
|
(C)
|
if
paragraph (b) of this Clause applies to such
Lender,
|
|
(d)
|
Provided
that on the Initial Termination Date there is no Event of Default or
Default continuing and subject to Clause 10.7 (
Extension
), the
extension will take effect on the Initial Termination Date in relation
to:
|
|
(i)
|
those
Lenders who have notified the Facility Agent, in accordance with the
provisions of paragraph (a) above, of their willingness to participate in
the extension; and
|
|
(ii)
|
any
Transferees referred to in paragraph (c)(i)
above,
|
|
(e)
|
Each
Borrower shall enter into such amendment and other documentation deemed
necessary by the Facility Agent (if any) to give effect to the Extension
Option.
|
7.4
|
Extension
Fee and Costs
|
8.
|
ILLEGALITY,
VOLUNTARY PREPAYMENT AND
CANCELLATION
|
8.1
|
Illegality
|
|
(a)
|
that
Lender shall promptly notify the Facility Agent upon becoming aware of
that event;
|
|
(b)
|
upon
the Facility Agent notifying the Borrower, the Commitment of that Lender
will be immediately cancelled; and
|
|
(c)
|
the
Borrower shall repay that Lender’s participation in the Loans on the last
day of the Interest Period for each Loan occurring after the Facility
Agent has notified the Borrower or, if earlier, the date specified by the
Lender in the notice delivered to the Facility Agent (being no earlier
than the last day of any applicable grace period permitted by
law).
|
8.2
|
Voluntary
prepayment
|
|
(a)
|
Subject
to paragraph (b) and (c) below, the Borrower may, if it gives the
Facility Agent not less than ten (10) Business Days’ (or such shorter
period as the Majority Lenders may agree) prior notice, prepay the whole
or any part of that Loan (but, if in part, being an amount that reduces
the amount of that Loan by a minimum amount of CZK
300,000,000).
|
|
(b)
|
A
Loan (or any part of any Loan) may only be prepaid after the last day of
the Availability Period (or, if earlier, the day on which the applicable
Available Facility is zero).
|
|
(c)
|
If
the Borrower prepays a Loan (or any part of any Loan) under this Clause
8.2 (
Voluntary
prepayment)
the Borrower shall, on the date of such voluntary
prepayment pay to the Facility Agent, in addition to the amounts prepaid,
a prepayment fee in the amount of 0.50% per cent. per annum until the
Initial Termination Date of the prepaid
amounts.
|
8.3
|
Right
of cancellation and repayment in relation to a single
Lender
|
|
(a)
|
If:
|
|
(i)
|
any
sum payable to any Lender by an Obligor is required to be increased under
paragraph (c) of Clause 15.2 (
Tax gross-up
);
or
|
|
(ii)
|
any
Lender claims indemnification from the Borrower or an Obligor under
Clause 15.3 (
Tax
indemnity
) or Clause 16.1 (
Increased
costs
),
|
|
(b)
|
On
receipt of a notice referred to in paragraph (a) above in relation to
a Lender, the Commitment of that Lender shall immediately be reduced to
zero.
|
|
(c)
|
On
the last day of each Interest Period which ends after the Borrower has
given notice under paragraph (a) above in relation to a Lender (or,
if earlier, the date specified by the Borrower in that notice), the
Borrower shall repay that Lender’s participation in the Loans together
with all interest and other amounts accrued under the Finance
Documents.
|
8.4
|
Right
of cancellation in relation to a Defaulting
Lender
|
|
(a)
|
If
any Lender becomes a Defaulting Lender, the Borrower may, at any time
whilst the Lender continues to be a Defaulting Lender, give the Facility
Agent ten (10) Business Days’ notice of cancellation of the Available
Commitment of that Lender.
|
|
(b)
|
On
the notice referred to in paragraph (a) above becoming effective, the
Available Commitment of the Defaulting Lender shall immediately be reduced
to zero.
|
|
(c)
|
The
Facility Agent shall as soon as practicable after receipt of a notice
referred to in paragraph (a) above, notify all the
Lenders.
|
8.5
|
Right
of cancellation in relation to a Market Disruption Event or an Alternative
Disruption Event
|
|
(a)
|
The
Borrower may, if it gives the Facility Agent not less than ten
(10) Business Days’ (or such shorter period as the Majority Lenders
may agree) prior notice given at the time when a Market Disruption Event
or an Alternative Disruption Event has occurred and is continuing, at its
option, prepay:
|
|
(i)
|
any
Loan in relation to which that Market Disruption Event or that Alternative
Disruption Event has occurred and is continuing;
or
|
|
(ii)
|
in
the case that such Market Disruption Event or Alternative Disruption Event
has occurred and is continuing in relation to a portion of a Loan only,
any such portion of a Loan.
|
|
(b)
|
Nothing
in this Clause 8.5 shall affect any rights or discretions of the Facility
Agent under paragraph (h) of Clause 29.6 (
Rights and
discretions
).
|
9.
|
MANDATORY
PREPAYMENT
|
9.1
|
Change
of Control
|
10.
|
RESTRICTIONS
|
10.1
|
Notices
of Cancellation or Prepayment
|
10.2
|
Interest
and other amounts
|
|
(a)
|
in
relation to any prepayment made under Clause 8.5 (
Right of cancellation in
relation to a Market Disruption Event or an Alternative Disruption
Event
), shall be made without Break Costs, prepayment fee, premium
or penalty; and
|
|
(b)
|
in
relation to any prepayment made under Clause 8.2 (
Voluntary
Prepayment
), shall be
made subject to Break Costs and prepayment fee as set out in paragraph (c)
of Clause 8.2 (
Voluntary
Prepayment
).
|
10.3
|
No
reborrowing of the Facility
|
10.4
|
Prepayment
in accordance with Agreement
|
10.5
|
No
reinstatement of Commitments
|
10.6
|
Facility
Agent’s receipt of Notices
|
10.7
|
Extension
|
10.8
|
Effect
of Repayment and Prepayment on
Commitments
|
11.
|
INTEREST
|
11.1
|
Calculation
of interest
|
|
(a)
|
Margin;
|
|
(b)
|
PRIBOR;
and
|
|
(c)
|
Mandatory
Cost, if any.
|
11.2
|
Payment
of interest
|
11.3
|
Default
interest
|
|
(a)
|
If
an Obligor fails to pay any amount payable by it under a Finance Document
on its due date, interest shall accrue on the overdue amount from the due
date up to the date of actual payment (both before and after judgment) at
a rate which, subject to paragraph (b) below, is
2 per cent. higher than the rate which would have been payable
if the overdue amount had, during the period of non-payment, constituted a
Loan in the currency of the overdue amount for successive Interest
Periods, each of a duration selected by the Facility Agent (acting
reasonably). Any interest accruing under this Clause 11.3
shall be immediately payable by the Obligor on demand by the Facility
Agent.
|
|
(b)
|
If
any overdue amount consists of all or part of a Loan which became due on a
day which was not the last day of an Interest Period relating to that
Loan:
|
|
(i)
|
the
first Interest Period for that overdue amount shall have a duration equal
to the unexpired portion of the current Interest Period relating to that
Loan; and
|
|
(ii)
|
the
rate of interest applying to the overdue amount during that first Interest
Period shall be 2 per cent. higher than the rate which would
have applied if the overdue amount had not become
due.
|
|
(c)
|
Default
interest (if unpaid) arising on an overdue amount will be compounded with
the overdue amount at the end of each Interest Period applicable to that
overdue amount but will remain immediately due and
payable.
|
11.4
|
Notification
of rates of interest
|
12.
|
INTEREST
PERIODS
|
12.1
|
Interest
Periods
|
|
(a)
|
An
Interest Period shall, in relation to each Loan, mean the period
commencing on the Utilisation Date in respect of that Loan and ending on
the date falling three (3) Months after the Utilisation Date in respect of
that Loan and each period of three (3) Months thereafter commencing on the
first day after the last day of the immediately preceding Interest Period
and ending on the date that falls three (3) Months after the last day of
the immediately preceding Interest
Period.
|
|
(b)
|
An
Interest Period for a Loan shall not extend beyond the Termination
Date.
|
|
(c)
|
Prior
to the Syndication Date, Interest Periods shall be one Month or such other
period as the Facility Agent and the Parent may agree and any Interest
Period which would otherwise end during the Month preceding or extend
beyond the Syndication Date shall end on the Syndication
Date.
|
12.2
|
Changes
to Interest Periods
|
|
(a)
|
Prior
to determining the interest rate for a Loan, the Facility Agent may
shorten an Interest Period for any Loan to ensure there are sufficient
Loans (with an aggregate amount equal to or greater than the relevant
repayment instalment) which have an Interest Period ending on a Repayment
Date for the Borrowers to make the relevant repayment instalment due on
that date.
|
|
(b)
|
If
the Facility Agent makes any of the changes to an Interest Period referred
to in this Clause 12.2, it shall promptly notify the Borrower and the
Lenders.
|
12.3
|
Non-Business
Days
|
12.4
|
Consolidation
of Loans
|
13.
|
CHANGES
TO THE CALCULATION OF INTEREST
|
13.1
|
Absence
of quotations
|
|
(a)
|
if
PRIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by the Specified Time on the
Quotation Day, the applicable PRIBOR shall be determined on the basis of
the quotations of the remaining Reference Banks;
or
|
|
(b)
|
if
Clause 13.3 (
Alternative Reference Bank
Rate
) applies but an Alternative Reference Bank does not supply a
quotation before close of business in Prague on the date falling one
Business Day after the Quotation Day for that Loan, the applicable
Alternative Reference Bank Rate shall be determined on the basis of the
quotations of the remaining Alternative Reference
Banks.
|
13.2
|
Market
disruption
|
|
(a)
|
If
a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then the rate of interest on each Lender’s share of that Loan for
the Interest Period shall be the percentage rate per annum which is the
sum of:
|
|
(i)
|
the
Margin;
|
|
(ii)
|
the
Alternative Reference Bank Rate or (if an Alternative Market Disruption
Event has occurred with respect to that Loan for the relevant Interest
Period of that Loan) the rate notified to the Facility Agent by that
Lender as soon as practicable and in any event by close of business in
Prague on the date falling 2 Business Days after the Quotation Day
(or, if earlier, on the date falling 2 Business Days prior to the
date on which interest is due to be paid in respect of that Interest
Period), to be that which expresses as a percentage rate per annum the
cost to that Lender of funding its participation in that Loan from
whatever source it may reasonably select;
and
|
|
(iii)
|
the
Mandatory Cost, if any, applicable to that Lender’s participation in the
Loan.
|
|
(b)
|
If:
|
|
(i)
|
the
percentage rate per annum notified by a Lender pursuant to
paragraph (a)(ii) above is less than the Alternative Reference Bank
Rate; or
|
|
(ii)
|
a
Lender has not notified the Facility Agent of a percentage rate per annum
pursuant to paragraph (a)(ii)
above,
|
|
(c)
|
In
this Agreement:
|
|
(i)
|
before
close of business in Prague on the date falling one Business Day after the
Quotation Day for the relevant Interest Period of the Loan, none or only
one of the Alternative Reference Banks supplies a rate to the Facility
Agent to determine the Alternative Reference Bank Rate for the relevant
Interest Period of the Loan; or
|
|
(ii)
|
before
close of business in Prague on the date falling 2 Business Days after
the Quotation Day for the relevant Interest Period of the Loan, the
Facility Agent receives notifications from a Lender or Lenders (whose
participations in that Loan exceed 35 per cent. of that Loan)
that the cost to it of funding its participation in that Loan from
whatever source it may reasonably select would be in excess of the
Alternative Reference Bank Rate;
and
|
|
(i)
|
at
or about noon on the Quotation Day for the relevant Interest Period none
of the rates referred to in paragraphs (a) and (b) of the definition of
“PRIBOR” is available and none or only one of the Reference Banks supplies
a rate to the Facility Agent to determine PRIBOR for CZK and Interest
Period; or
|
|
(ii)
|
before
close of business in Prague on the Quotation Day for the relevant Interest
Period of the Loan, the Facility Agent receives notifications from a
Lender or Lenders (whose participations in a Loan exceed 35 per cent.
of that Loan) that the cost to it of funding its participation in that
Loan from whatever source it may reasonably select would be in excess of
PRIBOR.
|
13.3
|
Alternative
Reference Bank Rate
|
|
(a)
|
If
a Market Disruption Event occurs, the Facility Agent shall as soon as is
practicable request each of the Alternative Reference Banks to supply to
it the rate at which that Alternative Reference Bank could have borrowed
funds in CZK and for the relevant period in the Prague interbank market at
or about 11:00 a.m. on the Quotation Day for the Interest Period of
that Loan, were it to have done so by asking for and then accepting
interbank offers for deposits in reasonable market size in the currency of
that Loan and for a period comparable to the Interest Period of that
Loan.
|
|
(b)
|
As
soon as is practicable after receipt of the rates supplied by the
Alternative Reference Banks, the Facility Agent will notify the Parent and
the Lenders of the arithmetic mean of the rates supplied to it in
accordance with paragraph (a) above (rounded upwards to four decimal
places) (the “
Alternative
Reference Bank Rate
”).
|
13.4
|
Alternative
basis of interest or funding
|
|
(a)
|
If
an Alternative Market Disruption Event occurs and the Facility Agent or
the Borrower so requires, the Facility Agent and the Borrower shall enter
into negotiations (for a period of not more than thirty days) with a view
to agreeing a substitute basis for determining the rate of
interest.
|
|
(b)
|
Any
alternative basis agreed pursuant to paragraph (a) above shall, with
the prior consent of all the Lenders and the Borrower, be binding on all
Parties.
|
13.5
|
Break
Costs
|
|
(a)
|
Each
Borrower shall, within five Business Days of demand by a Finance Party,
pay to that Finance Party its Break Costs attributable to all or any part
of a Loan or Unpaid Sum being paid by that Borrower on a day other than
the last day of an Interest Period for that Loan or Unpaid
Sum.
|
|
(b)
|
Each
Lender shall, as soon as reasonably practicable after a demand by the
Facility Agent, provide a certificate confirming the amount of its Break
Costs for any Interest Period in which they
accrue.
|
14.
|
FEES
|
15.
|
TAX
GROSS UP AND INDEMNITIES
|
15.1
|
Definitions
|
|
(a)
|
resident
in the Czech Republic for Czech tax
purposes;
|
|
(b)
|
a
person designated as a “Qualifying Lender” in writing by the Facility
Agent and the Borrower; or
|
|
(c)
|
a
Treaty Lender.
|
|
(i)
|
is
treated as a resident of a Treaty State for the purposes of the Treaty and
qualified for the benefits of the Treaty;
and
|
|
(ii)
|
does
not carry on a business in the Czech Republic through a permanent
establishment with which that Lender’s participation in the Loan is
effectively connected.
|
15.2
|
Tax
gross-up
|
|
(a)
|
Each
Obligor shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by
law.
|
|
(b)
|
The
Borrower shall promptly upon becoming aware that an Obligor must make a
Tax Deduction (or that there is any change in the rate or the basis of a
Tax Deduction) notify the Facility Agent
accordingly. Similarly, a Lender shall notify the Facility
Agent on becoming so aware in respect of a payment payable to that
Lender. If the Facility Agent receives such notification from a
Lender it shall notify the Borrower and that
Obligor.
|
|
(c)
|
If
a Tax Deduction is required by law to be made by an Obligor, the amount of
the payment due from that Obligor shall be increased to an amount which
(after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been
required.
|
|
(d)
|
A
payment shall not be increased under paragraph (c) above by reason of
a Tax Deduction on account of Tax imposed by the Czech Republic, if on the
date on which the payment falls
due:
|
|
(i)
|
the
payment could have been made to the relevant Lender without a Tax
Deduction if the Lender had been a Qualifying Lender, but on that date
that Lender is not or has ceased to be a Qualifying Lender;
or
|
|
(ii)
|
the
relevant Lender is a Treaty Lender and the payment could have been made to
the Lender without the Tax Deduction had that Lender complied with its
obligations under paragraph (g)
below.
|
|
(e)
|
If
an Obligor is required to make a Tax Deduction, that Obligor shall make
that Tax Deduction and any payment required in connection with that Tax
Deduction within the time allowed and in the minimum amount required by
law.
|
|
(f)
|
Within
thirty days of making either a Tax Deduction or any payment required in
connection with that Tax Deduction, the Obligor making that Tax Deduction
shall deliver to the Facility Agent for the Finance Party entitled to the
payment evidence reasonably satisfactory to that Finance Party that the
Tax Deduction has been made or (as applicable) any appropriate payment
paid to the relevant taxing
authority.
|
|
(g)
|
A
Treaty Lender and each Obligor which makes a payment to which that Treaty
Lender is entitled shall co-operate in completing any procedural
formalities necessary for that Obligor to obtain authorisation to make
that payment without a Tax Deduction, including any note limited to the
provision of a tax residence certificate issued by the tax authorities of
the relevant Treaty State and a beneficial ownership declaration, both in
accordance with the Decree D-286 issued by the Czech Ministry of
Finance.
|
15.3
|
Tax
indemnity
|
|
(a)
|
The
Borrower shall (within five Business Days of demand by the Facility Agent)
pay to a Protected Party an amount equal to the loss, liability or cost
which will be or has been directly suffered for or on account of Tax by
that Protected Party in respect of a Finance
Document.
|
|
(b)
|
Paragraph (a)
above shall not apply:
|
|
(i)
|
with
respect to any Tax assessed on a Finance
Party:
|
|
(A)
|
under
the law of the jurisdiction in which that Finance Party is incorporated
or, if different, the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax purposes;
or
|
|
(B)
|
under
the law of the jurisdiction in which that Finance Party is taxable in
respect of amounts received or receivable in that
jurisdiction,
|
|
(ii)
|
to
the extent a loss, liability or
cost:
|
|
(A)
|
is
compensated for by an increased payment under Clause 15.2 (
Tax gross-up
);
or
|
|
(B)
|
would
have been compensated for by an increased payment under Clause 15.2
(
Tax gross-up
)
but was not so compensated solely because one of the exclusions in
paragraph (d) of Clause 15.2 (
Tax gross-up
)
applied.
|
|
(c)
|
A
Protected Party making, or intending to make a claim under
paragraph (a) above shall promptly notify the Facility Agent of the
event which will give, or has given, rise to the claim, following which
the Facility Agent shall notify the
Borrower.
|
|
(d)
|
A
Protected Party shall, on receiving a payment from an Obligor under this
Clause 15.3, notify the Facility
Agent.
|
15.4
|
Tax
Credit
|
15.5
|
Lender
Status Confirmation
|
|
(a)
|
not
a Qualifying Lender;
|
|
(b)
|
a
Qualifying Lender (other than a Treaty Lender);
or
|
|
(c)
|
a
Treaty Lender.
|
15.6
|
Stamp
taxes
|
15.7
|
VAT
|
|
(a)
|
All
amounts set out or expressed in a Finance Document to be payable by any
Party to a Finance Party which (in whole or in part) constitute the
consideration for a supply or supplies for VAT purposes shall be deemed to
be exclusive of any VAT which is chargeable on such supply or supplies,
and accordingly, subject to paragraph (b) below, if VAT is or becomes
chargeable on any supply made by any Finance Party to any Party under a
Finance Document, that Party shall pay to the Finance Party (in addition
to and at the same time as paying any other consideration for such supply)
an amount equal to the amount of such VAT (and such Finance Party shall
promptly provide an appropriate VAT invoice to such
Party).
|
|
(b)
|
If
VAT is or becomes chargeable on any supply made by any Finance Party (the
“
Supplier
”) to any
other Finance Party (the “
Recipient
”) under a
Finance Document, and any Party other than the Recipient (the “
Subject Party
”) is
required by the terms of any Finance Document to pay an amount equal to
the consideration for such supply to the Supplier (rather than being
required to reimburse the Recipient in respect of that consideration),
such Party shall also pay to the Supplier (in addition to and at the same
time as paying such amount) an amount equal to the amount of such
VAT. The Recipient will promptly pay to the Subject Party an
amount equal to any credit or repayment obtained by the Recipient from the
relevant tax authority which the Recipient reasonably determines is in
respect of such VAT.
|
|
(c)
|
Where
a Finance Document requires any Party to reimburse or indemnify a Finance
Party for any cost or expense, that Party shall reimburse or indemnify (as
the case may be) such Finance Party for the full amount of such cost or
expense, including such part thereof as represents VAT, save to the extent
that such Finance Party is entitled to credit or repayment in respect of
such VAT from the relevant tax
authority.
|
|
(d)
|
Any
reference in this Clause 15.7 to any Party shall, at any time when
such Party is treated as a member of a group for VAT purposes, include
(where appropriate and unless the context otherwise requires) a reference
to the representative member of such group at such time (the term
“representative member” to have the same meaning as in the Value Added Tax
Act 1994).
|
16.
|
INCREASED
COSTS
|
16.1
|
Increased
costs
|
|
(a)
|
Subject
to Clause 16.3 (
Exceptions
) the
Borrower shall, within five Business Days of a demand by the Facility
Agent, pay for the account of a Finance Party the amount of any Increased
Costs incurred by that Finance Party or any of its Affiliates as a result
of (i) the introduction of or any change in (or in the
interpretation, administration or application of) any law or regulation or
(ii) compliance with any law or regulation made after the date of
this Agreement.
|
|
(b)
|
In
this Agreement “
Increased
Costs
” means:
|
|
(i)
|
a
reduction in the rate of return from the Facility or on a Finance Party’s
(or its Affiliate’s) overall
capital;
|
|
(ii)
|
an
additional or increased cost; or
|
|
(iii)
|
a
reduction of any amount due and payable under any Finance
Document,
|
16.2
|
Increased
cost claims
|
|
(a)
|
A
Finance Party intending to make a claim pursuant to Clause 16.1
(
Increased Costs
)
shall notify the Facility Agent of the event giving rise to the claim,
following which the Facility Agent shall promptly notify the
Borrower.
|
|
(b)
|
Each
Finance Party shall, as soon as practicable after a demand by the Facility
Agent, provide a certificate confirming the amount of its Increased
Costs.
|
16.3
|
Exceptions
|
|
(a)
|
Clause 16.1
(
Increased Costs
)
does not apply to the extent any Increased Cost
is:
|
|
(i)
|
attributable
to a Tax Deduction required by law to be made by an
Obligor;
|
|
(ii)
|
compensated
for by Clause 15.3 (
Tax
indemnity
) (or would have been compensated for under Clause 15.3
(
Tax indemnity
)
but was not so compensated solely because any of the exclusions in
paragraph (b) of Clause 15.3 (
Tax indemnity
)
applied);
|
|
(iii)
|
compensated
for by the payment of the Mandatory
Cost;
|
|
(iv)
|
attributable
to the wilful breach by the relevant Finance Party or its Affiliates of
any law or regulation; or
|
|
(v)
|
attributable
to the implementation or application of or compliance with the
"International Convergence of Capital Measurement and Capital Standards, a
Revised Framework" published by the Basel Committee on Banking Supervision
in June 2004 in the form existing on the date of this Agreement ("Basel
II") or any other law or regulation which implements Basel II (whether
such implementation, application or compliance is by a government,
regulator, Finance Party or any of its
Affiliates).
|
|
(b)
|
In
this Clause 16.3 reference to a “
Tax Deduction
” has the
same meaning given to the term in Clause 15.1 (
Definitions
).
|
17.
|
OTHER
INDEMNITIES
|
17.1
|
Currency
indemnity
|
|
(a)
|
If
any sum due from an Obligor under the Finance Documents (a “
Sum
”), or any order,
judgment or award given or made in relation to a Sum, has to be converted
from the currency (the “
First Currency
”) in
which that Sum is payable into another currency (the “
Second Currency
”) for
the purpose of:
|
|
(i)
|
making
or filing a claim or proof against that Obligor;
or
|
|
(ii)
|
obtaining
or enforcing an order, judgment or award in relation to any litigation or
arbitration proceedings,
|
|
(b)
|
Each
Obligor waives any right it may have in any jurisdiction to pay any amount
under the Finance Documents in a currency or currency unit other than that
in which it is expressed to be
payable.
|
17.2
|
Other
indemnities
|
|
(a)
|
the
occurrence of any Event of Default;
|
|
(b)
|
a
failure by an Obligor to pay any amount due under a Finance Document on
its due date, including without limitation, any cost, loss or liability
arising as a result of Clause 31 (
Sharing among the Finance
Parties
);
|
|
(c)
|
funding,
or making arrangements to fund, its participation in a Utilisation
requested by the Borrower in a Utilisation Request but not made by reason
of the operation of any one or more of the provisions of this Agreement
(other than by reason of default or negligence by that Finance Party
alone); or
|
|
(d)
|
a
Loan (or part of a Loan) not being prepaid in accordance with a notice of
prepayment given by the Borrower.
|
17.3
|
Indemnity
to the Facility Agent
|
|
(a)
|
investigating
any event which it reasonably believes is a Default;
or
|
|
(b)
|
acting
or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately
authorised.
|
17.4
|
Indemnity
to the Security Agent
|
|
(a)
|
Each
Obligor shall promptly indemnify the Security Agent and every Receiver and
Delegate against any cost, loss or liability incurred by any of them as a
result of:
|
|
(i)
|
the
taking, holding, protection or enforcement of the Transaction
Security,
|
|
(ii)
|
the
exercise of any of the rights, powers, discretions and remedies vested in
the Security Agent and each Receiver and Delegate by the Finance Documents
or by law (other than by reason of wilful misconduct or gross negligence
of the Security Agent and each Receiver and Delegate);
or
|
|
(iii)
|
any
default by any Obligor in the performance of any of the obligations
expressed to be assumed by it in the Finance
Documents.
|
|
(b)
|
The
Security Agent may, in priority to any payment to the Secured Parties,
indemnify itself out of the Charged Property in respect of, and pay and
retain, all sums necessary to give effect to the indemnity in this
Clause 17.4 and shall have a lien on the Transaction Security and the
proceeds of the enforcement of the Transaction Security for all monies
payable to it.
|
18.
|
MITIGATION
BY THE LENDERS
|
18.1
|
Mitigation
|
|
(a)
|
Each
Finance Party shall, in consultation with the Borrower, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under or pursuant to, or cancelled
pursuant to, any of Clause 8.1 (
Illegality
),
Clause 15 (
Tax
gross-up and indemnities
) or Clause 16 (
Increased Costs
) or
paragraph 3 of Schedule 4 (
Mandatory Cost formula
)
including (but not limited to) transferring its rights and obligations
under the Finance Documents to another Affiliate or Facility
Office.
|
|
(b)
|
Paragraph (a)
above does not in any way limit the obligations of any Obligor under the
Finance Documents.
|
18.2
|
Limitation
of liability
|
|
(a)
|
The
Borrower shall promptly indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of steps
taken by it under Clause 18.1 (
Mitigation
).
|
|
(b)
|
A
Finance Party is not obliged to take any steps under Clause 18.1
(
Mitigation
) if,
in the opinion of that Finance Party (acting reasonably), to do so might
be prejudicial to it.
|
19.
|
COSTS
AND EXPENSES
|
19.1
|
Transaction
expenses
|
|
(a)
|
this
Agreement and any other documents referred to in this Agreement and the
Transaction Security; and
|
|
(b)
|
any
other Finance Documents executed after the date of this
Agreement.
|
19.2
|
Amendment
costs
|
19.3
|
Security
Agent’s ongoing costs
|
|
(a)
|
In
the event of (i) a Default or (ii) the Security Agent
considering it necessary or expedient or (iii) the Security Agent
being requested by an Obligor or the Majority Lenders to undertake duties
which the Security Agent and the Borrower agree to be of an exceptional
nature and/or outside the scope of the normal duties of the Security Agent
under the Finance Documents, the Borrower shall pay to the Security Agent
any additional remuneration that may be agreed between
them.
|
|
(b)
|
If
the Security Agent and the Borrower fail to agree upon the nature of the
duties or upon any additional remuneration, that dispute shall be
determined by an investment bank (acting as an expert and not as an
arbitrator) selected by the Security Agent and approved by the Borrower
or, failing approval, nominated (on the application of the Security Agent)
by the President for the time being of the Law Society of England and
Wales (the costs of the nomination and of the investment bank being
payable by the Borrower) and the determination of any investment bank
shall be final and binding upon the parties to this
Agreement.
|
19.4
|
Enforcement
and preservation costs
|
20.
|
GUARANTEE
AND INDEMNITY
|
20.1
|
Guarantee
and indemnity
|
|
(a)
|
guarantees
to each Finance Party punctual performance by each other Obligor of all
that Obligor’s payment obligations under the Finance
Documents;
|
|
(b)
|
undertakes
with each Finance Party that whenever another Obligor does not pay any
amount when due under or in connection with any Finance Document, that
Guarantor shall promptly on demand pay that amount as if it was the
principal obligor; and
|
|
(c)
|
agrees
with each Finance Party that if any obligation guaranteed by it is or
becomes unenforceable, invalid or illegal, it will, as an independent and
primary obligation, indemnify that Finance Party promptly on demand
against any cost, loss or liability it incurs as a result of an Obligor
not paying any amount which would, but for such unenforceability,
invalidity or illegality, have been payable by it under any Finance
Document on the date when it would have been due. The amount
payable by a Guarantor under this indemnity will not exceed the amount it
would have had to pay under this Clause 20 if the amount claimed had
been recoverable on the basis of a
guarantee.
|
20.2
|
Continuing
Guarantee
|
20.3
|
Reinstatement
|
20.4
|
Waiver
of defences
|
|
(a)
|
any
time, waiver or consent granted to, or composition with, any Obligor or
other person;
|
|
(b)
|
the
release of any other Obligor or any other person under the terms of any
composition or arrangement with any creditor of any member of the
Group;
|
|
(c)
|
the
taking, variation, compromise, exchange, renewal or release of, or refusal
or neglect to perfect, take up or enforce, any rights against, or security
over assets of, any Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any
security;
|
|
(d)
|
any
incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of an Obligor or any other
person;
|
|
(e)
|
any
amendment, novation, supplement, extension restatement (however
fundamental and whether or not more onerous) or replacement of a Finance
Document or any other document or security including, without limitation,
any change in the purpose of, any extension of or increase in any facility
or the addition of any new facility under any Finance Document or other
document or security;
|
|
(f)
|
any
unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document or any other document or security;
or
|
|
(g)
|
any
insolvency or similar proceedings.
|
20.5
|
Guarantor
Intent
|
20.6
|
Immediate
recourse
|
20.7
|
Appropriations
|
|
(a)
|
refrain
from applying or enforcing any other moneys, security or rights held or
received by that Finance Party (or any trustee or agent on its behalf) in
respect of those amounts, or apply and enforce the same in such manner and
order as it sees fit (whether against those amounts or otherwise) and no
Guarantor shall be entitled to the benefit of the same;
and
|
|
(b)
|
hold
in an interest-bearing suspense account any moneys received from any
Guarantor or on account of any Guarantor’s liability under this
Clause 20.
|
20.8
|
Deferral
of Guarantors’ rights
|
|
(a)
|
Until
all amounts which may be or become payable by the Obligors under or in
connection with the Finance Documents have been irrevocably paid in full
and unless the Facility Agent otherwise directs, no Guarantor will
exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents or by reason of any amount
being payable, or liability arising, under this Clause
20:
|
|
(i)
|
to
be indemnified by an Obligor;
|
|
(ii)
|
to
claim any contribution from any other guarantor of any Obligor’s
obligations under the Finance
Documents;
|
|
(iii)
|
to
take the benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Finance Parties under the Finance
Documents or of any other guarantee or security taken pursuant to, or in
connection with, the Finance Documents by any Finance
Party;
|
|
(iv)
|
to
bring legal or other proceedings for an order requiring any Obligor to
make any payment, or perform any obligation, in respect of which any
Guarantor has given a guarantee, undertaking or indemnity under Clause
20.1 (
Guarantee and
Indemnity
);
|
|
(v)
|
to
exercise any right of set-off against any Obligor;
and/or
|
|
(vi)
|
to
claim or prove as a creditor of any Obligor in competition with any
Finance Party.
|
|
(b)
|
Subject
to paragraph (c) below, if a Guarantor receives any benefit, payment or
distribution in relation to such rights it shall hold that benefit,
payment or distribution to the extent necessary to enable all amounts
which may be or become payable to the Finance Parties by the Obligors
under or in connection with the Finance Documents to be repaid in full on
trust for the Finance Parties and shall promptly pay or transfer the same
to the Facility Agent or as the Facility Agent may direct for application
in accordance with Clause 32 (
Payment
mechanics
).
|
|
(c)
|
Each
Guarantor being a Slovak Obligor shall, as a commissioned agent (in
Slovak:
komisionár
) under
Section 577
et
seq.
of the Slovak Commercial Code, hold in its own name but for
the account of the Finance Parties any benefit, payment or distribution
received by it contrary to this Clause and must immediately pay or
transfer to the Facility Agent or as the Facility Agent may direct for
application in accordance with Clause 32 (
Payment
mechanics
).
|
20.9
|
Release
of Guarantors’ right of
contribution
|
|
(a)
|
that
Retiring Guarantor is released by each other Guarantor from any liability
(whether past, present or future and whether actual or contingent) to make
a contribution to any other Guarantor arising by reason of the performance
by any other Guarantor of its obligations under the Finance Documents;
and
|
|
(b)
|
each
other Guarantor waives any rights it may have by reason of the performance
of its obligations under the Finance Documents to take the benefit (in
whole or in part and whether by way of subrogation or otherwise) of any
rights of the Finance Parties under any Finance Document or of any other
security taken pursuant to, or in connection with, any Finance Document
where such rights or security are granted by or in relation to the assets
of the Retiring Guarantor.
|
20.10
|
Additional
security
|
20.11
|
Guarantee
Limitations
|
|
(a)
|
In
respect of a Dutch Guarantor, the guarantee under this Clause 20 does not
apply to any liability to the extent that it would result in this
guarantee constituting unlawful financial assistance within the meaning of
section 2:207c of the Dutch Civil
Code.
|
|
(b)
|
This
guarantee does not apply to any liability to the extent it would result in
this guarantee constituting unlawful financial assistance provided by a
Slovak Obligor (having a legal form of joint-stock company (
akciová
spoločnosť
)) within the meaning of Section 161e of the Slovak
Commercial Code.
|
21.
|
REPRESENTATIONS
|
21.1
|
General
|
21.2
|
Status
|
|
(a)
|
It
is a limited liability company or corporation (as the case may be), duly
incorporated and validly existing under the law of its jurisdiction of
incorporation.
|
|
(b)
|
It
has the power to own its material assets and carry on its business in all
material respects as it is being
conducted.
|
21.3
|
Binding
obligations
|
|
(a)
|
the
obligations expressed to be assumed by it in each Finance Document to
which it is a party are legal, valid, binding and enforceable obligations;
and
|
|
(b)
|
(without
limiting the generality of paragraph (a) above), each Transaction
Security Document to which it is a party creates the security interests
which that Transaction Security Document purports to create and those
security interests are valid and
effective.
|
21.4
|
Non-conflict
with other obligations
|
|
(a)
|
any
law or legally binding regulation applicable to each Obligor (including
all applicable local laws and regulations concerning (i) corporate
benefit, and (ii) financial assistance by a company for the
acquisition of or subscription for its own shares or the shares of its
Holding Company or any other
company);
|
|
(b)
|
each
Obligors constitutional documents;
or
|
|
(c)
|
any
material agreement or instrument (including, without limitation, the
Parent 2009 Indenture, any other Parent Note Document or any other Parent
Note Instrument) binding upon any Obligor or any material assets of any
Obligor or constitute a default or termination event (however described)
under any such agreement or
instrument.
|
21.5
|
Power
and authority
|
|
(a)
|
It
has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the Finance Documents to which it is or will be a party and the
transactions contemplated by those Finance
Documents.
|
|
(b)
|
No
limit on its powers will be exceeded as a result of the borrowing, grant
of security or giving of guarantees or indemnities contemplated by the
Finance Documents to which it is a
party.
|
21.6
|
Validity
and admissibility in evidence
|
|
(a)
|
All
Authorisations required:
|
|
(i)
|
to
enable it lawfully to enter into, exercise its rights and comply with its
obligations in the Finance Documents to which it is a party;
and
|
|
(ii)
|
to
make the Finance Documents to which it is a party admissible in evidence
in its Relevant Jurisdictions (subject to any necessary translation of
such Finance Documents and notarisation of any such
translation),
|
|
(b)
|
All
Authorisations (including, without limitation, the Broadcasting Licences)
necessary for the material conduct of the business of any Obligor have
been obtained or effected and are in full force and
effect.
|
21.7
|
Governing
law and enforcement
|
|
(a)
|
the
choice of governing law of the Finance Documents will be recognised and
enforced in its Relevant Jurisdictions;
and
|
|
(b)
|
any
judgment obtained in relation to a Finance Document in the jurisdiction of
the governing law of that Finance Document will be recognised and enforced
in its Relevant Jurisdictions.
|
21.8
|
Insolvency
|
|
(a)
|
corporate
action, legal proceeding or other procedure or step described in
paragraph (a) of Clause 25.8 (
Insolvency
proceedings
); or
|
|
(b)
|
creditors’
process described in Clause 25.9 (
Creditors’
process
),
|
21.9
|
No
filing or stamp taxes
|
21.10
|
Deduction
of Tax
|
21.11
|
No
default
|
|
(a)
|
No
Event of Default and, on the date of this Agreement, no Default is
continuing or is reasonably likely to result from the making of any Loan
or the entry into, the performance of, or any transaction contemplated by,
any Finance Document.
|
|
(b)
|
No
other event or circumstance is outstanding which constitutes (or, with the
expiry of a grace period, the giving of notice, the making of any
determination or any combination of any of the foregoing, would
constitute) a default or termination event (however described) under any
other agreement or instrument which is binding on it or any member of the
Group or to which its assets (or assets of any of member of the Group) are
subject which has or is in the reasonable opinion of the Majority Lenders
likely to have a Material Adverse
Effect.
|
21.12
|
No
misleading information
|
|
(a)
|
any
factual information relating to the Group contained in Lenders’
Presentation or the Information Package was true and accurate in all
material respects as at the date of the relevant report or document
containing the information or (as the case may be) as at the date the
information is expressed to be
given;
|
|
(b)
|
the
Borrower’s Business Plan and the Parent Group Business Plan have been
prepared in accordance with applicable Accounting Principles as applied to
the Original Financial Statements, relating to the Group or the Parent
Group, as applicable, contained in the Borrower’s Business Plan or the
Parent Group Business Plan, as applicable, have been prepared on and based
on assumptions considered reasonable and have been approved by the
statutory executives of the Borrower and the Parent,
respectively;
|
|
(c)
|
any
financial projection or forecast relating to any Key Obligor contained in
the Information Package (including, without limitation, the Borrower’s
Business Plan) has been prepared on the basis of assumptions considered
reasonable and was (as at the date of the relevant report or document
containing the projection or forecast) arrived at after careful
consideration;
|
|
(d)
|
the
expressions of opinion or intention relating to any Key Obligor provided
by or on behalf of an Obligor for the purposes of the Information Package
(including, without limitation, the Borrower’s Business Plan) which are
contained in the Information Package were made after careful
consideration;
|
|
(e)
|
to
the best of its knowledge and belief, no event or circumstance has
occurred or arisen and no information has been omitted from the
Information Package and no information has been given or withheld that
results in the information, forecasts or projections relating to the Group
or the Parent Group contained in the Information Package being untrue or
misleading in any material respect;
and
|
|
(f)
|
all
other factual written information relating to the Group or the Parent
Group provided by any member of the Parent Group to a Finance Party or the
provider of the Valuation Report was true and accurate in all material
respects as at the date it was provided and is not misleading in any
material respect as at that date.
|
21.13
|
Original
Financial Statements
|
|
(a)
|
In
relation to Obligors other than the Dutch Guarantors, its Original
Financial Statements were prepared in accordance with the Accounting
Principles consistently applied.
|
|
(b)
|
In
relation to Obligors other than the Dutch Guarantors, its unaudited
Original Financial Statements fairly represent its financial condition and
results of operations (consolidated in the case of the Borrower and the
Parent) for the relevant period.
|
|
(c)
|
In
relation to Obligors other than the Dutch Guarantors, its audited Original
Financial Statements (other than the Parent) give a true and fair view of
its financial condition and results of operations, and in the case of the
Parent, fairly present its financial condition and results of operations
(consolidated in the case of the Borrower and the Parent) during the
relevant financial year.
|
|
(d)
|
There
has been no material adverse change in its assets, business or financial
condition since the date of the Original Financial
Statements.
|
|
(e)
|
Its
most recent financial statements delivered pursuant to Clause 22.1
(
Financial
Statements
):
|
|
(i)
|
have
been prepared in accordance with the Accounting Principles as applied to
the Original Financial Statements;
and
|
|
(ii)
|
give
a true and fair view of in the case of an Obligor (other than the Parent)
or fairly present in the case of the Parent (if audited) or fairly
represent (if unaudited) its consolidated financial condition as at the
end of, and consolidated results of operations for, the period to which
they relate.
|
|
(f)
|
The
forecasts supplied under this Agreement were arrived at after careful
consideration and have been prepared on the basis of assumptions
considered reasonable as at the date they were prepared and
supplied.
|
|
(g)
|
In
relation to Dutch Guarantors, its Original Dutch Filings have been
prepared in accordance with Dutch statutory
requirements.
|
21.14
|
No
proceedings pending or threatened
|
|
(a)
|
No
litigation, arbitration or administrative proceedings or investigations
of, or before, any court, arbitral body or agency have (to the best of its
knowledge and belief (having made due and careful enquiry)) been started
against it or any member of the Parent Group
which:
|
|
(i)
|
are
not a Disclosed Litigation; and
|
|
(ii)
|
allege
liability in the amount exceeding in aggregate at any one time (a) USD
5,000,000 (or its equivalent in other currency or currencies) for any
individual member of the Group, or (b) USD 25,000,000 (or its equivalent
in other currency or currencies) for the Parent Group as a
whole.
|
21.15
|
No
breach of laws
|
|
(a)
|
Neither
it, nor any other member of the Group has breached any law or regulation
which breach has or is reasonably likely to have a Material Adverse
Effect.
|
|
(b)
|
No
labour disputes are current or, to the best of its knowledge and belief
(having made due and careful enquiry), threatened against any member of
the Group which have or are reasonably likely to have a Material Adverse
Effect.
|
21.16
|
Environmental
laws
|
|
(a)
|
Each
member of the Group is in compliance with Clause 24.3 (
Environmental
compliance
) and to the best of its knowledge and belief no
circumstances have occurred which would prevent such compliance in a
manner or to an extent which has or is reasonably likely to have a
Material Adverse Effect.
|
|
(b)
|
No
Environmental Claim has been commenced or (to the best of its knowledge
and belief) is threatened against any member of the Group where that claim
has or is reasonably likely, if determined against that member of the
Group, to have a Material Adverse
Effect.
|
21.17
|
Taxation
|
|
(a)
|
Neither
it, nor any other member of the Group is materially overdue in the filing
of any Tax returns or in the payment of any amount in respect of Tax of
CZK 1,000,000 (or its equivalent in any other currency) or
more.
|
|
(b)
|
No
claims or investigations are being made or conducted against it or any
other member of the Group with respect to Taxes except (i) those for which
adequate reserves have been made and which are being contested in good
faith by appropriate proceedings which are being diligently conducted, or
(ii) such that a liability of, or claim against it of CZK 10,000,000 (or
its equivalent in any other currency) or less has been
made.
|
21.18
|
Security
and Financial Indebtedness
|
|
(a)
|
No
Security or Quasi-Security exists over all or any of the present or future
assets of any other member of the Group other than as permitted by this
Agreement.
|
|
(b)
|
Neither
it, nor any other member of the Group has any Financial Indebtedness
outstanding other than as permitted by this Agreement other than Permitted
Financial Indebtedness.
|
21.19
|
Ranking
|
21.20
|
Good
title to assets
|
21.21
|
Legal
and beneficial ownership
|
21.22
|
Shares
|
21.23
|
Intellectual
Property
|
|
(a)
|
is
the sole legal and beneficial owner of or has licensed to it on normal
commercial terms all the Intellectual Property which is material in the
context of its business and which is required by it in order to carry on
its business as it is being conducted and as contemplated in the Business
Plan;
|
|
(b)
|
does
not infringe any Intellectual Property of any third party in any respect;
and
|
|
(c)
|
has
taken all formal or procedural actions (including payment of fees)
required to maintain any material Intellectual Property owned by
it,
|
21.24
|
Centre
of main interests and
establishments
|
21.25
|
No
adverse consequences
|
|
(a)
|
Subject
to the Legal Reservations, it is not necessary under the laws of its
Relevant Jurisdictions:
|
|
(i)
|
in
order to enable any Finance Party to enforce its rights under any Finance
Document; or
|
|
(ii)
|
by
reason of the execution of any Finance Document or the performance by it
of its obligations under any Finance
Document,
|
|
(b)
|
Subject
to the Legal Reservations, no Finance Party is or will be deemed to be
resident, domiciled or carrying on business in its Relevant Jurisdictions
by reason only of the execution, performance and/or enforcement of any
Finance Document.
|
21.26
|
Pension
Plans
|
21.27
|
Immunity
|
|
(a)
|
Neither
it, nor any other member of the Group has the benefit of any immunity in
respect of itself or its assets or revenues in any jurisdiction, including
any immunity in respect of:
|
|
(i)
|
the
giving of any relief by way of injunction or order for specific
performance or for the recovery of assets or revenues;
or
|
|
(ii)
|
the
issue of any process against its assets or revenues for the enforcement of
a judgment or, in an action
in rem
, for the arrest,
detention or sale of any of its assets and
revenues.
|
|
(b)
|
Each
Obligor and each other member of the Group is subject to private and
commercial law, and has entered into the Finance Documents to which it is
party (or will enter into the Finance Documents to which it intends to be
party) as private and commercial
acts.
|
21.28
|
Group
Structure Chart
|
|
(a)
|
The
Group Structure Chart is true, complete and accurate in all material
respects and shows the following
information:
|
|
(i)
|
each
Obligor, each other member of the Group, in each case including current
name and company registration number, its jurisdiction of incorporation
and/or establishment, and in relation to members of the Group also a list
of shareholders and indication of whether the relevant member of the Group
is a company with limited liability;
and
|
|
(ii)
|
all
minority interests in any member of the Group and any person in which any
member of the Group holds shares in its issued share capital or equivalent
ownership interest of such person.
|
|
(b)
|
All
Inter-Group Loans and all Intra-Group Loans as at the date of this
Agreement are set out in the Group Structure Chart and have been or will
be taken in compliance with all relevant laws and regulations and all
requirements of relevant regulatory
authorities.
|
21.29
|
No
Change of Control
|
21.30
|
Times
when representations made
|
|
(a)
|
All
the representations and warranties in this Clause 21 are made by each
Original Obligor on the date of this
Agreement.
|
|
(b)
|
The
Repeating Representations are deemed to be made by each Obligor on the
date of each Utilisation Request, on each Utilisation Date and on the
first day of each Interest Period.
|
|
(c)
|
All
the Repeating Representations are deemed to be made by each Additional
Obligor on the day on which it becomes (or it is proposed that it becomes)
an Additional Obligor.
|
|
(d)
|
Each
representation or warranty deemed to be made after the date of this
Agreement shall be deemed to be made by reference to the facts and
circumstances existing at the date the representation or warranty is
deemed to be made.
|
22.
|
INFORMATION
UNDERTAKINGS
|
22.1
|
Financial
statements
|
|
(a)
|
as
soon as they are available, but in any event within 120 days after the end
of the Financial Year:
|
|
(i)
|
the
audited stand-alone financial statements of each Key Obligor for that
Financial Year;
|
|
(ii)
|
the
audited consolidated financial statements of the Borrower (including, for
the avoidance of doubt, Markiza) and the Parent for that Financial Year;
and
|
|
(b)
|
as
soon as they are available, but in any event within 60 days (or in
relation to any financial statements of the Borrower for a Financial
Quarter ending on 31 December, 90 days) after the end of the Financial
Quarter:
|
|
(i)
|
the
unaudited stand-alone financial statements of the Borrower for that
Financial Quarter; and
|
|
(ii)
|
the
unaudited consolidated financial statements of the Borrower (including,
for the avoidance of doubt, Markiza) and the Parent for that Financial
Quarter (excluding in relation to the Parent only the financial statements
for any Financial Quarter ending on 31
December).
|
22.2
|
Provision
and contents of Compliance
Certificate
|
|
(a)
|
The
Borrower shall supply a Compliance Certificate to the Facility Agent with
each set of its audited consolidated Annual Financial Statements and each
set of its consolidated Quarterly Financial
Statements.
|
|
(b)
|
The
Compliance Certificate shall, amongst other things, set out (in reasonable
detail) computations as to compliance with Clause 23 (
Financial
Covenants
).
|
|
(c)
|
Each
Compliance Certificate shall be signed by two statutory executives of the
Borrower.
|
22.3
|
Requirements
as to financial statements
|
|
(a)
|
The
Parent and the Borrower shall procure that each set of Annual Financial
Statements and Quarterly Financial Statements includes a balance sheet,
profit and loss account and cashflow statement. In addition the
Parent and the Borrower shall procure
that:
|
|
(i)
|
each
set of Annual Financial Statements shall be audited by the Auditors;
and
|
|
(ii)
|
each
set of Annual Financial Statements of the Borrower shall be accompanied by
a cashflow forecast in respect of the Borrower relating to the 12-month
period commencing at the end of the relevant Financial
Year.
|
|
(b)
|
Each
set of financial statements delivered pursuant to Clause 22.1 (
Financial
statements
):
|
|
(i)
|
shall
be certified by a director (in case of the financial statements of the
Parent) or a statutory executive (in case of the financial statements of
the Borrower) of any Obligor (other than the Parent) as giving a true and
fair view of, and in the case of the Parent, fairly present (in the case
of Annual Financial Statements for any Financial Year), or fairly
representing (in other cases), in all material respects its financial
condition and operations as at the date as at which those financial
statements were drawn up and, in the case of the Annual Financial
Statements, shall be accompanied by any letter addressed to the management
of the relevant company by the Auditors and accompanying those Annual
Financial Statements;
|
|
(ii)
|
shall
be prepared using the Accounting Principles, and using further accounting
practices and financial reference periods consistent with those
applied:
|
|
(A)
|
in
the case of the Borrower, in the preparation of the Original Financial
Statements and the Borrower’s Business Plan;
and
|
|
(B)
|
in
the case of the Parent, in the preparation of its Original Financial
Statements,
|
|
(C)
|
a
description of any change necessary for those financial statements to
reflect the Accounting Principles or accounting practices upon which the
Borrower’s Business Plan or, as the case may be, relevant Original
Financial Statements were prepared;
and
|
|
(D)
|
sufficient
information, in form and substance as may be reasonably required by the
Facility Agent, to enable the Lenders to determine whether Clause 23
(
Financial
covenants
) has been complied with and to make an accurate
comparison between the financial position indicated in those financial
statements and the Borrower’s Business Plan (in the case of the Borrower
only) and/or Original Financial
Statements.
|
|
(c)
|
If
the Facility Agent wishes to discuss the financial position of any Obligor
with the Auditors, the Facility Agent may notify the Borrower and Parent,
stating the questions or issues which the Facility Agent wishes to discuss
with the Auditors. In this event, the Borrower and the Parent
must ensure that the Auditors are authorised (at the expense of the
Borrower) at reasonable times and on reasonable
notice:
|
|
(i)
|
to
discuss the financial position of the relevant Obligor with the Facility
Agent on request from the Facility Agent;
and
|
|
(ii)
|
to
disclose to the Facility Agent for the Finance Parties any information
which the Facility Agent may reasonably
request.
|
22.4
|
Presentations
|
22.5
|
Year-end
|
22.6
|
Information: miscellaneous
|
|
(a)
|
at
the same time as they are dispatched, copies of all documents (i)
dispatched by the Parent to its shareholders generally (or any class of
them), (ii) dispatched by the Borrower to its shareholders pursuant
to mandatory provisions of Czech law, or (iii) dispatched by the Parent or
the Borrower to their respective creditors generally (or any class of
them);
|
|
(b)
|
promptly
upon becoming aware of them, the details of any litigation, arbitration or
administrative proceedings which are current or pending against any
Obligor or any member of the Parent Group, and (i) which, if adversely
determined, are reasonably likely to have a Material Adverse Effect, or
(ii) which would involve a liability, or a potential or alleged
liability, exceeding in aggregate at any one time USD 25,000,000 (or its
equivalent in any other currencies) for the Parent Group or USD 5,000,000
(or its equivalent in any other currencies for the
Group;
|
|
(c)
|
promptly,
such information as the Security Agent may reasonably require about the
Charged Property and compliance of the Obligors with the terms of any
Transaction Security Documents; and
|
|
(d)
|
promptly
on request, such further information regarding the financial condition,
assets and operations of the Group and/or any other Obligor as any Finance
Party through the Facility Agent may reasonably
request.
|
22.7
|
Notification
of default
|
|
(a)
|
Each
Obligor shall notify the Facility Agent of any Default (and the steps, if
any, being taken to remedy it) promptly upon becoming aware of its
occurrence (unless that Obligor is aware that a notification has already
been provided by another Obligor).
|
|
(b)
|
Promptly
upon a request by the Facility Agent, the Borrower shall supply to the
Facility Agent a certificate signed by two of its statutory executives on
its behalf certifying that no Default is continuing (or if a Default is
continuing, specifying the Default and the steps, if any, being taken to
remedy it).
|
22.8
|
“Know
your customer” checks
|
|
(a)
|
If:
|
|
(i)
|
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation made after the date of this
Agreement;
|
|
(ii)
|
any
change in the status of an Obligor or the composition of the shareholders
of an Obligor after the date of this Agreement;
or
|
|
(iii)
|
a
proposed assignment or transfer by a Lender of any of its rights and/or
obligations under this Agreement to a party that is not a Lender prior to
such assignment or transfer,
|
|
(b)
|
Each
Lender shall promptly upon the request of the Facility Agent supply, or
procure the supply of, such documentation and other evidence as is
reasonably requested by the Facility Agent (for itself) in order for the
Facility Agent to carry out and be satisfied it has complied with all
necessary “know your customer” or other similar checks under all
applicable laws and regulations pursuant to the transactions contemplated
in the Finance Documents.
|
|
(c)
|
The
Parent shall, by not less than 10 Business Days’ prior written notice
to the Facility Agent, notify the Facility Agent (which shall promptly
notify the Lenders) of its intention to request that one of its
Subsidiaries becomes an Additional Obligor pursuant to Clause 28
(
Changes to the
Obligors
).
|
|
(d)
|
Following
the giving of any notice pursuant to paragraph (c) above, if the
accession of such Additional Obligor obliges the Facility Agent or any
Lender to comply with “know your customer” or similar identification
procedures in circumstances where the necessary information is not already
available to it, the Parent shall promptly upon the request of the
Facility Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the
Facility Agent (for itself or on behalf of any Lender) or any Lender (for
itself or on behalf of any prospective new Lender) in order for the
Facility Agent or such Lender or any prospective new Lender to carry out
and be satisfied it has complied with all necessary “know your customer”
or other similar checks under all applicable laws and regulations pursuant
to the accession of such Subsidiary to this Agreement as an Additional
Obligor.
|
23.
|
FINANCIAL
COVENANTS
|
23.1
|
Financial
definitions
|
|
(a)
|
moneys
borrowed and debit balances at banks or other financial
institutions;
|
|
(b)
|
any
acceptances under any acceptance credit or bill discount facility (or
dematerialised equivalent);
|
|
(c)
|
any
note purchase facility or the issue of bonds (but not Trade Instruments),
notes, debentures, loan stock or any similar
instrument;
|
|
(d)
|
any
Finance Lease;
|
|
(e)
|
receivables
sold or discounted (other than any receivables to the extent they are sold
on a non-recourse basis and meet any requirements for de-recognition under
the Accounting Principles);
|
|
(f)
|
any
counter-indemnity obligation in respect of a guarantee, bond, standby or
documentary letter of credit or any other instrument (but not, in any
case, Trade Instruments) issued by a bank or financial institution in
respect of (i) an underlying liability of an entity which is not a member
of the Group which liability would fall within one of the other paragraphs
of this definition or (ii) any liabilities of any member of the Group
relating to any post-retirement benefit
scheme;
|
|
(g)
|
any
amount raised by the issue of shares which are redeemable (other than at
the option of the issuer) before the Termination Date or are otherwise
classified as borrowings under the Accounting
Principles;
|
|
(h)
|
any
amount of any liability under an advance or deferred purchase agreement if
(i) one of the primary reasons behind the entry into the agreement is
to raise finance or to finance the acquisition or construction of the
asset or service in question or (ii) the agreement is in respect of
the supply of assets or services and payment is due more than one hundred
and eighty (180) days after the date of
supply;
|
|
(i)
|
any
amount raised under any other transaction (including any forward sale or
purchase agreement, sale and sale back or sale and leaseback agreement)
having the commercial effect of a borrowing or otherwise classified as
borrowings under the Accounting Principles;
and
|
|
(j)
|
(without
double counting) the amount of any liability in respect of any guarantee
or indemnity for any of the items referred to in paragraphs (a) to
(i) above;
|
|
(a)
|
adding
the amount of any decrease (and deducting the amount of any increase) in
Working Capital for that Relevant
Period;
|
|
(b)
|
adding
the amount of any cash receipts (and deducting the amount of any cash
payments) during that Relevant Period in respect of any Exceptional Items
not already taken account of in calculating EBITDA for any Relevant Period
);
|
|
(c)
|
adding
the amount of any cash receipts during that Relevant Period in respect of
any Tax rebates or credits and deducting the amount actually paid or due
and payable in respect of Taxes during that Relevant Period by any member
of the Group;
|
|
(d)
|
adding
(to the extent not already taken into account in determining EBITDA) the
amount of any dividends or other profit distributions received in cash by
any member of the Group during that Relevant Period from any entity which
is itself not a member of the Group and deducting (to the extent not
already deducted in determining EBITDA) the amount of any dividends paid
in cash during the Relevant Period to minority shareholders of members of
the Group and to the shareholders in the
Borrower;
|
|
(e)
|
adding
the amount of any increase in provisions, other non-cash debits and other
non-cash charges (which are not Current Assets or Current Liabilities) and
deducting the amount of any non-cash credits (which are not Current Assets
or Current Liabilities) in each case to the extent taken into account in
establishing EBITDA;
|
|
(f)
|
deducting
the amount of any Capital Expenditure actually made during that Relevant
Period by any member of the Group and the aggregate of any cash
consideration paid for, or the cash cost of, any Business Acquisitions and
the amount of any Joint Venture Investments in cash;
and
|
|
(g)
|
deducting
the amount of any cash costs of Pension Items during that Relevant Period
to the extent not taken into account in establishing
EBITDA;
|
|
(a)
|
receivables
in relation to Tax;
|
|
(b)
|
Exceptional
Items and other non-operating
items;
|
|
(c)
|
insurance
claims;
|
|
(d)
|
any
interest owing to any member of the Group;
and
|
|
(e)
|
any
amounts owed to any member of the Group under any Intra-Group Loan or any
Inter-Group Loan.
|
|
(a)
|
liabilities
for Borrowings and Finance Charges, and any amounts in respect of any
Intra-Group Loan or any Inter-Group
Loan;
|
|
(b)
|
liabilities
for Tax;
|
|
(c)
|
Exceptional
Items and other non-operating
items;
|
|
(d)
|
insurance
claims; and
|
|
(e)
|
liabilities
in relation to dividends declared but not paid by any member of the Group
in favour of any person which is not a member of the
Group.
|
|
(a)
|
Finance
Charges for that Relevant Period;
|
|
(b)
|
the
aggregate of all scheduled and mandatory repayments of Borrowings falling
due and any voluntary prepayments made during that Relevant Period but
excluding:
|
|
(i)
|
any
amounts falling due under any overdraft or revolving facility and which
were available for simultaneous redrawing according to the terms of that
facility;
|
|
(ii)
|
any
such obligations owed to the Borrower;
and
|
|
(iii)
|
any
prepayment of the Facility which is required to be repaid under the terms
of this Agreement; and
|
|
(c)
|
the
amount of the capital element of any payments in respect of that Relevant
Period payable under any Finance Lease entered into by the
Borrower,
|
|
(a)
|
before
deducting
any
Finance Charges whether paid, payable or capitalised by any member of the
Group in respect of that Relevant
Period;
|
|
(b)
|
not
including any accrued interest owing to any member of the
Group;
|
|
(c)
|
before
taking into account any Exceptional
Items;
|
|
(d)
|
after
deducting the amount of any profit (or adding back the amount of any loss)
of any member of the Group which is attributable to minority
interests;
|
|
(e)
|
before
taking into account any unrealised gains or losses on any derivative
instrument (other than any derivative instrument which is accounted for on
a hedge accounting basis);
|
|
(f)
|
before
taking into account any gain or loss arising from an upward or downward
revaluation of any other asset at any time after 31 March
2009;
|
|
(g)
|
before
taking into account any Pension
Items;
|
|
(h)
|
excluding
the charge to profit represented by the expensing of stock options;
and
|
|
(a)
|
the
restructuring of the activities of an entity and reversals of any
provisions for the cost of
restructuring;
|
|
(b)
|
disposals,
revaluations or impairment of non-current assets;
and
|
|
(c)
|
disposals
of assets associated with discontinued
operations.
|
|
(a)
|
including
any upfront fees or costs which are included as part of the effective
interest rate adjustments;
|
|
(b)
|
including
the interest (but not the capital) element of payments in respect of
Finance Leases;
|
|
(c)
|
including
any commission, fees, discounts and other finance payments payable by (and
deducting any such amounts payable to) any member of the Group under any
interest rate hedging arrangement;
|
|
(d)
|
excluding
any interest cost or expected return on plan assets in relation to any
post-employment benefit schemes;
|
|
(e)
|
taking
no account of any unrealised gains or losses on any derivative instruments
other than any derivative instruments which are accounted for on a hedge
accounting basis; and
|
|
(f)
|
including
any cash dividends or distributions paid, or any payments (including any
loans/advances provided, repayment and/or prepayment of principal amounts
and payment of interest) under any Inter-Group Loan (but excluding any
amounts in respect of interest accrued on the principal amounts of any
Inter-Group Loans, to the extent that such principal amounts do not exceed
those outstanding as at the date of this Agreement) by a member of the
Group in respect of that Relevant
Period.
|
|
(a)
|
the
aggregate of Loans outstanding at that
date;
|
|
(b)
|
the
aggregate Financial Indebtedness outstanding at that date under the
Factoring Facility Agreement; and
|
|
(c)
|
the
aggregate amount of Permitted Financial Indebtedness outstanding at that
date which is permitted to be subject to
Security.
|
23.2
|
Financial
condition
|
|
(a)
|
Cashflow
Cover
: Cashflow Cover in respect of any Relevant Period
shall not be less than 1.75:1.
|
|
(b)
|
Interest
Cover
: Interest Cover in respect of any Relevant Period
shall not be less than 5.00:1.
|
|
(c)
|
Senior Secured
Leverage
: Senior Secured Leverage in respect of any
Relevant Period shall not exceed
2.30:1.
|
23.3
|
Financial
testing
|
24.
|
GENERAL
UNDERTAKINGS
|
24.1
|
Authorisations
|
|
(a)
|
obtain,
comply with and do all that is necessary to maintain in full force and
effect; and
|
|
(b)
|
supply
certified copies to the Facility Agent
of,
|
|
(i)
|
enable
it to perform its obligations under the Finance
Documents;
|
|
(ii)
|
ensure
the legality, validity, enforceability or admissibility in evidence of any
Finance Document (subject to any necessary translation of such Finance
Documents and notarisation of any such translation);
and
|
|
(iii)
|
carry
on its business where failure to do has or, in the reasonable opinion of
the Majority Lender, is likely to have a Material Adverse
Effect.
|
24.2
|
Compliance
with laws
|
24.3
|
Environmental
compliance
|
|
(a)
|
comply
with all Environmental Law;
|
|
(b)
|
obtain,
maintain and ensure compliance with all requisite Environmental
Permits;
|
|
(c)
|
implement
procedures to monitor compliance with and to prevent liability under any
Environmental Law,
|
24.4
|
Environmental
claims
|
|
(a)
|
any
Environmental Claim against it or any other member of the Group which is
current, pending or threatened; and
|
|
(b)
|
any
facts or circumstances which are reasonably likely to result in any
Environmental Claim being commenced or threatened against it or any other
member of the Group,
|
24.5
|
Taxation
|
|
(a)
|
Each
Key Obligor shall (and each Key Obligor shall procure that each other
member of the Group will) pay and discharge all Taxes imposed upon it or
its assets within the time period allowed without incurring penalties
unless and only to the extent that:
|
|
(i)
|
such
payment is being contested in good
faith;
|
|
(ii)
|
adequate
reserves are being maintained for those Taxes and the costs required to
contest them which have been disclosed in its latest financial statements
delivered to the Facility Agent under Clause 22.1 (
Financial statements
);
and
|
|
(iii)
|
such
payment can be lawfully withheld and failure to pay those Taxes does not
have or is not reasonably likely to have a Material Adverse
Effect.
|
24.6
|
Merger
|
24.7
|
Change
of business
|
24.8
|
Acquisitions
|
|
(a)
|
Except
as permitted under paragraph (b) below, no Key Obligor shall (and
each Key Obligor shall procure that no other member of the Group
will):
|
|
(i)
|
acquire
a company or any shares or securities or a business or undertaking (or, in
each case, any interest in any of them);
or
|
|
(ii)
|
incorporate
a company.
|
|
(b)
|
Paragraph (a)
above does not apply to an acquisition of a company, of shares, securities
or a business or undertaking (or, in each case, any interest in any of
them) or the incorporation of a company which
is:
|
|
(i)
|
a
Permitted Acquisition; or
|
|
(ii)
|
a
Permitted Transaction.
|
24.9
|
Joint
ventures
|
|
(a)
|
Except
as permitted under paragraph (b) below, no Key Obligor shall (and
each Key Obligor shall procure that no other member of the Group
will):
|
|
(i)
|
enter
into, invest in or acquire (or agree to acquire) any shares, stocks,
securities or other interest in any Joint Venture;
or
|
|
(ii)
|
transfer
any assets or lend to or guarantee or give an indemnity for or give
Security for the obligations of a Joint Venture or maintain the solvency
of or provide working capital to any Joint Venture (or agree to do any of
the foregoing).
|
|
(b)
|
Paragraph (a)
above does not apply to any acquisition of (or agreement to acquire) any
interest in a Joint Venture or transfer of assets (or agreement to
transfer assets) to a Joint Venture or loan made to or guarantee (or
agreement to loan or guarantee) given in respect of the obligations of a
Joint Venture if such transaction is a Permitted Acquisition, a Permitted
Disposal, a Permitted Loan or a Permitted Joint
Venture.
|
24.10
|
Preservation
of assets
|
24.11
|
Pari
passu ranking
|
24.12
|
Negative
pledge
|
|
(a)
|
No
Key Obligor shall (and each Key Obligor shall procure that no other member
of the Group will) create or permit to subsist any Security over any of
its assets.
|
|
(b)
|
No
Key Obligor shall (and each Key Obligor shall procure that no other member
of the Group will):
|
|
(i)
|
sell,
transfer or otherwise dispose of any of its assets on terms whereby they
are or may be leased to or re-acquired by
it;
|
|
(ii)
|
sell,
transfer or otherwise dispose of any of its receivables on recourse
terms;
|
|
(iii)
|
enter
into any arrangement under which money or the benefit of a bank or other
account may be applied, set-off or made subject to a combination of
accounts; or
|
|
(iv)
|
enter
into any other preferential arrangement having a similar
effect,
|
|
(c)
|
Neither
CME Media Enterprises B.V., nor CME Romania B.V. shall (and the Parent
shall ensure that no other person which becomes the owner of any shares of
the Borrower after the date of this Agreement will) create or permit to
subsist any Security or Quasi-Security over any shares of the
Borrower.
|
|
(d)
|
Paragraphs (a)
and (b) above do not apply to any Security or (as the case may be)
Quasi-Security, which is:
|
|
(i)
|
Permitted
Security; or
|
|
(ii)
|
a
Permitted Transaction.
|
24.13
|
Disposals
|
|
(a)
|
Except
as permitted under paragraph (b) below, no Key Obligor shall (and
each Key Obligor shall procure that no other member of the Group will)
enter into a single transaction or a series of transactions (whether
related or not) and whether voluntary or involuntary to sell, lease,
transfer or otherwise dispose of any
asset.
|
|
(b)
|
Paragraph (a)
above does not apply to any sale, lease, transfer or other disposal which
is or part of:
|
|
(i)
|
a
Permitted Disposal; or
|
|
(ii)
|
a
Permitted Transaction.
|
24.14
|
Arm’s
length basis
|
|
(a)
|
Except
as permitted by paragraph (b) below, no Key Obligor shall (and each
Key Obligor shall procure that no other member of the Group will) enter
into any transaction with any Affiliate (other than a member of the Group)
except on arm’s length terms for market
value.
|
|
(b)
|
The
following transactions shall not be a breach of this
Clause 24.14:
|
|
(i)
|
Intra-Group
Loans and Inter-Group Loans permitted under Clause 24.15 (
Loans or
credit
);
|
|
(ii)
|
fees,
costs and expenses payable under the Finance Documents in the amounts set
out in the Finance Documents delivered to the Facility Agent under
Clause 4.1 (
Initial
conditions precedent
) or agreed by the Facility
Agent;
|
|
(iii)
|
any
Permitted Transaction; and
|
|
(iv)
|
payments
in respect of management services, administration or other similar fees
and charges invoiced to or by any Key Obligor or member of the Group by or
to any Affiliate of any member of the Group, where the aggregate of such
payments made by the members of the Group does not exceed CZK 100,000,000
(or its equivalent in any currencies) in any Financial Year,
provided that
promptly
upon request of the Facility Agent, the Borrower shall provide to the
Facility Agent a reasonably detailed summary (including,
without limitation, any information regarding such payments requested by,
or actually provided by the members of the Group to, their respective
auditors) of all such payments made under this paragraph (iv) during the
period set out in the request of the Facility Agent (such period not to
include any period for which the relevant information has already been
provided in form and substance satisfactory to the Facility Agent by the
Borrower in accordance with this paragraph
(iv)).
|
24.15
|
Loans
or credit
|
|
(a)
|
Except
as permitted under paragraph (b) below, no Key Obligor shall (and
each Key Obligor shall procure that no other member of the Group will) be
a creditor in respect of any Financial
Indebtedness.
|
|
(b)
|
Paragraph (a)
above does not apply to:
|
|
(i)
|
a
Permitted Loan; or
|
|
(ii)
|
a
Permitted Transaction.
|
24.16
|
No
Guarantees or indemnities
|
|
(a)
|
Except
as permitted under paragraph (b) below, no Key Obligor shall (and
each Key Obligor shall procure that no other member of the Group will)
incur or allow to remain outstanding any guarantee in respect of any
obligation of any person.
|
|
(b)
|
Paragraph (a)
does not apply to a guarantee which is part
of:
|
|
(i)
|
a
Permitted Guarantee; or
|
|
(ii)
|
a
Permitted Transaction.
|
24.17
|
Financial
Indebtedness
|
|
(a)
|
Except
as permitted under paragraph (b) below, no Key Obligor shall (and
each Key Obligor shall procure that no other member of the Group will)
incur or allow to remain outstanding any Financial
Indebtedness.
|
|
(b)
|
Paragraph (a)
above does not apply to Financial Indebtedness which is part
of:
|
|
(i)
|
Permitted
Financial Indebtedness; or
|
|
(ii)
|
a
Permitted Transaction.
|
24.18
|
Share
capital
|
|
(a)
|
a
Permitted Share Issue; or
|
|
(b)
|
a
Permitted Transaction.
|
24.19
|
Insurance
|
|
(a)
|
Each
Key Obligor shall (and each Key Obligor shall procure that each other
member of the Group will) maintain insurances on and in relation to its
business and material assets against those risks which a reasonable and
prudent operator of the same or substantially similar business would
consider prudent and to the extent as is usual for companies carrying on
the same or substantially similar
business.
|
|
(b)
|
Without
affecting the generality of paragraph (a) above, each Key Obligor shall
(and each Key Obligor shall procure that each other member of the Group
will) maintain the Required
Insurances.
|
|
(c)
|
All
insurances must be with independent insurance companies or underwriters
which a reasonable and prudent operator of the same or substantially
similar business as the business of the Borrower would consider to be
reputable.
|
24.20
|
Access
|
24.21
|
Intellectual
Property
|
|
(a)
|
Each
Key Obligor shall (and each Key Obligor shall procure that each other
member of the Group will):
|
|
(i)
|
preserve
and maintain the subsistence and validity of the Intellectual Property
necessary for its respective
business;
|
|
(ii)
|
use
reasonable endeavours to prevent any infringement in any material respect
of the Intellectual Property by
it;
|
|
(iii)
|
make
registrations and pay all registration fees and taxes necessary to
maintain the Intellectual Property in full force and effect and record its
interest in that Intellectual
Property;
|
|
(iv)
|
not
use or permit the Intellectual Property to be used in a way or take any
step or omit to take any step in respect of that Intellectual Property
which may materially and adversely affect the existence or value of the
Intellectual Property or imperil the right of the Borrower or Markiza, as
applicable, to use such property;
and
|
|
(v)
|
not
discontinue the use of the Intellectual
Property,
|
|
(b)
|
Failure
to comply with any part of paragraph (a) above shall not be a breach
of this Clause 24.21 to the extent that any dealing with Intellectual
Property which would otherwise be a breach of paragraph (a) is
contemplated by the definition of Permitted
Transaction.
|
24.22
|
Amendments
|
|
(a)
|
No
Obligor shall amend, vary, novate, supplement, supersede, waive or
terminate any term of a Transaction Document or any other document
delivered to the Facility Agent pursuant to Clause 4.1 (
Initial conditions
precedent
) or Clause 28 (
Changes to the
Obligors
) or enter into any agreement with any shareholders of any
member of the Group which is not a member of the Group except in
writing:
|
|
(i)
|
in
accordance with the provisions of Clause 38 (
Amendments and
Waivers
);
|
|
(ii)
|
to
the extent that that amendment, variation, novation, supplement,
superseding, waiver or termination is permitted by this Agreement or in
writing by the Facility Agent (acting on instruction of the Majority
Lenders); or
|
|
(iii)
|
in
a way which could not be reasonably expected materially and adversely to
affect the interests of the
Lenders.
|
|
(b)
|
The
Parent and/or the Borrower shall promptly supply to the Facility Agent a
copy of any document relating to any of the matters referred to in
paragraphs (i) to (iii) above.
|
24.23
|
Financial
assistance
|
24.24
|
Borrower’s
accounts
|
|
(a)
|
The
Borrower shall ensure that all banking accounts of the Borrower
(i) be opened and maintained with the Facility Agent, other Finance
Party or another bank approved in writing by the Facility Agent and (ii)
be subject to valid Security under the Transaction Security
Documents.
|
|
(b)
|
The
failure to comply with paragraph (a) shall not be a breach of this Clause
24.24 to the extent that the Borrower has opened with Bank Mendes Gans nv
the cash-pooling accounts Nos.:
|
|
(A)
|
NL80BKMG0261081985
(in CZK);
|
|
(B)
|
NL96BKMG0261092367
(in EUR);
|
|
(C)
|
NL70BKMG0261102923
(in USD);
|
|
(c)
|
The
failure to comply with paragraph (a)(i) shall not be a breach of this
Clause 24.24 to the extent that:
|
|
(i)
|
for
the period of not more than 3 calendar months from the date of this
Agreement, the Borrower will have opened with Raiffeisenbank a.s., a
joint-stock company established under the laws of the Czech Republic,
having its registered office at Prague 4,
Hvězdova
1716/2b
, Postal Code: 140 78, Business Identification No.:
49240901, registered in the Commercial Register maintained by the
Municipal Court in Prague, Section B., File 2051, the accounts
Nos.:
|
|
(A)
|
166557837/5500
(in CZK);
|
|
(B)
|
166557837/5500
(in EUR);
|
|
(C)
|
166557837/5500
(in USD); and
|
|
(D)
|
158607304/5500
(in CZK); and
|
|
(ii)
|
the
Borrower has opened with
Slovenská
sporiteľňa, a.s., a joint-stock company established under the laws of
the Slovak Republic, having its registered office at
Bratislava,
Tomášikova 48, Postal Code: 832 37, Business Identification No.: 00 151
653, registered in the Commercial Register maintained by the District
Court in Bratislava, Section Sa, File 601/B., the accounts
Nos.:
|
|
(A)
|
SK7909000000000633651954
(in CZK); and
|
|
(B)
|
SK040900000000633651946
(in EUR).
|
24.25
|
Treasury
Transactions
|
|
(a)
|
the
hedging transactions documented by the Hedging Agreements;
and
|
|
(b)
|
spot
and forward delivery foreign exchange and interest rate contracts entered
into in the ordinary course of its business as conducted on the date of
this Agreement and not for speculative
purposes.
|
24.26
|
Compliance
with Hedging Letter
|
24.27
|
Further
assurance
|
|
(a)
|
Each
Obligor providing Transaction Security shall promptly do all such acts or
execute all such documents (including assignments, transfers, mortgages,
charges, notices and instructions) as the Security Agent may reasonably
specify (and in such form as the Security Agent may reasonably require in
favour of the Security Agent or its
nominee(s)):
|
|
(i)
|
to
perfect the Security created or intended to be created under or evidenced
by the Transaction Security Documents (which may include the execution of
a mortgage, charge, assignment or other Security over all or any of the
assets which are, or are intended to be, the subject of the Transaction
Security) or for the exercise of any rights, powers and remedies of the
Security Agent or the Finance Parties provided by or pursuant to the
Finance Documents or by law;
|
|
(ii)
|
to
confer on the Security Agent or confer on the Finance Parties Security
over any property and assets of that Obligor located in any jurisdiction
equivalent or similar to the Security intended to be conferred by or
pursuant to the Transaction Security Documents;
and/or
|
|
(iii)
|
to
facilitate the realisation of the assets which are, or are intended to be,
the subject of the Transaction
Security.
|
|
(b)
|
Each
Obligor providing Transaction Security shall take all such action as is
available to it (including making all filings and registrations) as may be
necessary for the purpose of the creation, perfection, protection or
maintenance of any Security conferred or intended to be conferred on the
Security Agent or the Finance Parties by or pursuant to the Finance
Documents.
|
24.28
|
Syndication
|
24.29
|
Conditions
subsequent
|
24.30
|
Parent
Undertaking
|
24.31
|
Additional
Guarantors
|
25.
|
EVENTS
OF DEFAULT
|
25.1
|
Non-payment
|
|
(a)
|
its
failure to pay is caused by:
|
|
(i)
|
administrative
or technical error; or
|
|
(ii)
|
a
Disruption Event; and
|
|
(b)
|
payment
is made within 3 Business Days of its due
date.
|
25.2
|
Financial
covenants
|
25.3
|
Information
undertakings, general undertakings and Transaction Security
Documents
|
|
(a)
|
An
Obligor does not comply with the provisions of Clause 22 (
Information
Undertakings
) and/or Clause 24 (
General Undertakings
)
and/or with any material provision of any Transaction Security
Document.
|
|
(b)
|
No
Event of Default under paragraph (a) above will occur if the failure
to comply is capable of remedy and is remedied within 10 Business Days of
the earlier of (i) the Facility Agent giving notice to the Borrower
or relevant Obligor and (ii) the Borrower or an Obligor becoming
aware of the failure to comply.
|
25.4
|
Other
obligations
|
|
(a)
|
An
Obligor does not comply with any provision of the Finance Documents (other
than those referred to in Clause 25.1 (
Non-payment
), Clause
25.2 (
Financial
covenants
) and Clause 25.3 (
Information undertakings,
general undertakings and Transaction Security
Documents
)).
|
|
(b)
|
No
Event of Default under paragraph (a) above will occur if the failure
to comply is capable of remedy and is remedied within 20 Business Days of
the earlier of (i) the Facility Agent giving notice to the Borrower
or relevant Obligor and (ii) the Borrower or an Obligor becoming
aware of the failure to comply.
|
25.5
|
Misrepresentation
|
25.6
|
Cross
default
|
|
(a)
|
Any
Financial Indebtedness of any Significant Subsidiary is not paid when due
nor within any originally applicable grace
period.
|
|
(b)
|
Any
Financial Indebtedness of any Significant Subsidiary is declared to be or
otherwise becomes due and payable prior to its specified maturity as a
result of an event of default (however
described).
|
|
(c)
|
Any
commitment for any Financial Indebtedness of any Significant Subsidiary is
cancelled or suspended by a creditor of any Significant Subsidiary as a
result of an event of default (however
described).
|
|
(d)
|
Any
creditor of any Significant Subsidiary becomes entitled to declare any
Financial Indebtedness of any Significant Subsidiary due and payable prior
to its specified maturity as a result of an event of default (however
described).
|
|
(e)
|
No
Event of Default will occur under this Clause 25.6 if the
aggregate amount of Financial Indebtedness or commitment for Financial
Indebtedness falling within paragraphs (a) to (d) above is less than
USD 25,000,000 (or its equivalent in any other currency or currencies) in
aggregate for all Significant
Subsidiaries.
|
25.7
|
Insolvency
|
|
(a)
|
An
Obligor is unable or admits inability to pay its debts as they fall due or
is deemed in any Relevant Jurisdiction to or declared to be unable to pay
its debts under applicable law, suspends or threatens to suspend making
payments on its financial indebtedness or, by reason of actual or
anticipated financial difficulties, commences negotiations with one or
more of its creditors with a view to rescheduling any of its financial
indebtedness.
|
|
(b)
|
Any
Obligor is insolvent in its jurisdiction of
incorporation.
|
|
(c)
|
A
moratorium is declared in respect of any financial indebtedness of any
Obligor. If a moratorium occurs, the ending of the moratorium will by
itself not remedy any Event of Default caused by that
moratorium.
|
25.8
|
Insolvency
proceedings
|
|
(a)
|
Any
corporate action, legal proceedings or other procedure or step is taken in
relation to:
|
|
(i)
|
the
suspension of payments, a moratorium of any indebtedness, insolvency,
winding-up, dissolution, administration or reorganisation (by way of
voluntary arrangement, scheme of arrangement or otherwise) of any
Obligor;
|
|
(ii)
|
a
composition, compromise, assignment or arrangement with any creditor of
any Obligor by reason of financial difficulties of that
Obligor;
|
|
(iii)
|
the
appointment of a liquidator, receiver, administrative receiver,
administrator, compulsory manager or other similar officer in respect of
any Obligor or any of its material assets;
or
|
|
(iv)
|
enforcement
of any Security over any material assets of any
Obligor,
|
|
(b)
|
Paragraph (a)
shall not apply to:
|
|
(i)
|
any
winding-up or bankruptcy petition or any other action, proceeding, step or
other procedure which is frivolous or vexatious and is discharged, stayed
or dismissed within 30 Business Days of commencement;
or
|
|
(ii)
|
any
action, proceeding, step or other procedure contemplated by paragraph (b)
or (d) of the definition of Permitted
Transaction.
|
25.9
|
Creditors’
process
|
25.10
|
Unlawfulness
and invalidity
|
|
(a)
|
It
is or becomes unlawful for an Obligor to perform any of its payment or
reporting obligations or any other material undertakings under the Finance
Documents, or any Transaction Security created or expressed to be created
or evidenced by the Transaction Security Documents ceases to be
effective.
|
|
(b)
|
Any
obligation or obligations of any Obligor are not (subject to the Legal
Reservations) or cease to be legal, valid, binding or enforceable and the
cessation individually or cumulatively materially and adversely affects
the interests of the Lenders under the Finance
Documents.
|
|
(c)
|
Any
Finance Document ceases to be in full force and effect or any Transaction
Security ceases to be legal, valid, binding, enforceable or effective or
is alleged by a party to it (other than a Finance Party) to be
ineffective, in each case in any material
respect.
|
25.11
|
Cessation
of business
|
25.12
|
Change
of ownership
|
25.13
|
Expropriation
|
25.14
|
Repudiation
and rescission of agreements
|
25.15
|
Judgments
and arbitral awards
|
25.16
|
Authorisations
|
25.17
|
Material
adverse change
|
25.18
|
Acceleration
|
|
(a)
|
cancel
the Total Commitments at which time they shall immediately be
cancelled;
|
|
(b)
|
declare
that all or part of the Loans, together with accrued interest, and all
other amounts accrued or outstanding under the Finance Documents be
immediately due and payable, at which time they shall become immediately
due and payable;
|
|
(c)
|
declare
that all or part of the Loans be payable on demand, at which time they
shall immediately become payable on demand by the Facility Agent on the
instructions of the Majority Lenders;
and/or
|
|
(d)
|
exercise
or direct the Security Agent to exercise any or all of its rights,
remedies, powers or discretions under the Finance
Documents.
|
26.
|
CHANGES
TO THE LENDERS
|
26.1
|
Assignments
and transfers by the Lenders
|
|
(a)
|
assign
any of its rights; or
|
|
(b)
|
transfer
by novation any of its rights and
obligations,
|
26.2
|
Conditions
of assignment or transfer
|
|
(a)
|
An
assignment will only be effective
on:
|
|
(i)
|
receipt
by the Facility Agent (whether in the Assignment Agreement or otherwise)
of written confirmation from the New Lender (in form and substance
satisfactory to the Facility Agent) that the New Lender will assume the
same obligations to the other Finance Parties and the other Secured
Parties as it would have been under if it was an Original Lender;
and
|
|
(ii)
|
the
performance by the Facility Agent of all necessary “know your customer” or
other similar checks under all applicable laws and regulations in relation
to such assignment to a New Lender, the completion of which the Facility
Agent shall promptly notify to the Existing Lender and the New
Lender.
|
|
(b)
|
A
transfer will only be effective if the procedure set out in
Clause 26.5 (
Procedure for transfer
)
is complied with.
|
|
(c)
|
If:
|
|
(i)
|
a
Lender assigns or transfers any of its rights or obligations under the
Finance Documents or changes its Facility Office;
and
|
|
(ii)
|
as
a result of circumstances existing at the date the assignment, transfer or
change occurs, an Obligor would be obliged to make a payment to the New
Lender or Lender acting through its new Facility Office under
Clause 16 (
Increased
Costs
),
|
|
(d)
|
Each
New Lender, by executing the relevant Transfer Certificate or Assignment
Agreement, confirms, for the avoidance of doubt, that the Facility Agent
has authority to execute on its behalf any amendment or waiver that has
been approved by or on behalf of the requisite Lender or Lenders in
accordance with this Agreement on or prior to the date on which the
transfer or assignment becomes effective in accordance with this Agreement
and that it is bound by that decision to the same extent as the Existing
Lender would have been had it remained a
Lender.
|
26.3
|
Assignment
or transfer fee
|
26.4
|
Limitation
of responsibility of Existing
Lenders
|
|
(a)
|
Unless
expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender
for:
|
|
(i)
|
the
legality, validity, effectiveness, adequacy or enforceability of the
Finance Documents, the Transaction Security or any other
documents;
|
|
(ii)
|
the
financial condition of any Obligor;
|
|
(iii)
|
the
performance and observance by any Obligor or any other member of the
Parent Group of its obligations under the Finance Documents or any other
documents; or
|
|
(iv)
|
the
accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or any other
document,
|
|
(b)
|
Each
New Lender confirms to the Existing Lender, the other Finance Parties and
the Secured Parties that it:
|
|
(i)
|
has
made (and shall continue to make) its own independent investigation and
assessment of the financial condition and affairs of each Obligor and its
related entities in connection with its participation in this Agreement
and has not relied exclusively on any information provided to it by the
Existing Lender or any other Finance Party in connection with any Finance
Document or the Transaction Security;
and
|
|
(ii)
|
will
continue to make its own independent appraisal of the creditworthiness of
each Obligor and its related entities whilst any amount is or may be
outstanding under the Finance Documents or any Commitment is in
force.
|
|
(c)
|
Nothing
in any Finance Document obliges an Existing Lender
to:
|
|
(i)
|
accept
a re-transfer or re-assignment from a New Lender of any of the rights and
obligations assigned or transferred under this Clause 26;
or
|
|
(ii)
|
support
any losses directly or indirectly incurred by the New Lender by reason of
the non-performance by any Obligor of its obligations under the Finance
Documents or otherwise.
|
26.5
|
Procedure
for transfer
|
|
(a)
|
Subject
to the conditions set out in Clause 26.2 (
Conditions of assignment or
transfer
) a transfer is effected in accordance with
paragraph (c) below when the Facility Agent executes an otherwise
duly completed Transfer Certificate delivered to it by the Existing Lender
and the New Lender. The Facility Agent shall, subject to
paragraph (b) below, as soon as reasonably practicable after receipt
by it of a duly completed Transfer Certificate appearing on its face to
comply with the terms of this Agreement and delivered in accordance with
the terms of this Agreement, execute that Transfer
Certificate.
|
|
(b)
|
The
Facility Agent shall only be obliged to execute a Transfer Certificate
delivered to it by the Existing Lender and the New Lender once it is
satisfied it has complied with all necessary “know your customer” or
similar checks under all applicable laws and regulations in relation to
the transfer to such New Lender.
|
|
(c)
|
Subject
to Clause 26.11 (
Pro rata interest
settlement
), on the Transfer
Date:
|
|
(i)
|
to
the extent that in the Transfer Certificate the Existing Lender seeks to
transfer by novation its rights and obligations under the Finance
Documents and in respect of the Transaction Security each of the Obligors
and the Existing Lender shall be released from further obligations towards
one another under the Finance Documents and in respect of the Transaction
Security and their respective rights against one another under the Finance
Documents and in respect of the Transaction Security shall be cancelled
(being the “
Discharged
Rights and Obligations
”);
|
|
(ii)
|
each
of the Obligors and the New Lender shall assume obligations towards one
another and/or acquire rights against one another which differ from the
Discharged Rights and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of that Obligor and
the Existing Lender;
|
|
(iii)
|
the
Facility Agent, the Arranger, the Security Agent, the New Lender and the
other Lenders shall acquire the same rights and assume the same
obligations between themselves and in respect of the Transaction Security
as they would have acquired and assumed had the New Lender been an
Original Lender with the rights, and/or obligations acquired or assumed by
it as a result of the transfer and to that extent the Facility Agent, the
Arranger, the Security Agent and the Existing Lender shall each be
released from further obligations to each other under the Finance
Documents; and
|
|
(iv)
|
the
New Lender shall become a Party as a
“Lender”.
|
26.6
|
Procedure
for assignment
|
|
(a)
|
Subject
to the conditions set out in Clause 26.2 (
Conditions of assignment or
transfer
) an assignment may be effected in accordance with
paragraph (c) below when the Facility Agent executes an otherwise
duly completed Assignment Agreement delivered to it by the Existing Lender
and the New Lender. The Facility Agent shall, subject to
paragraph (b) below, as soon as reasonably practicable after receipt
by it of a duly completed Assignment Agreement appearing on its face to
comply with the terms of this Agreement and delivered in accordance with
the terms of this Agreement, execute that Assignment
Agreement.
|
|
(b)
|
The
Facility Agent shall only be obliged to execute an Assignment Agreement
delivered to it by the Existing Lender and the New Lender once it is
satisfied it has complied with all necessary “know your customer” or
similar checks under all applicable laws and regulations in relation to
the assignment to such New Lender.
|
|
(c)
|
Subject
to Clause 26.11 (
Pro rata interest
settlement
), on the Transfer
Date:
|
|
(i)
|
the
Existing Lender will assign absolutely to the New Lender its rights under
the Finance Documents and in respect of the Transaction Security expressed
to be the subject of the assignment in the Assignment
Agreement;
|
|
(ii)
|
the
Existing Lender will be released from the obligations (the “
Relevant Obligations
”)
expressed to be the subject of the release in the Assignment Agreement
(and any corresponding obligations by which it is bound in respect of the
Transaction Security); and
|
|
(iii)
|
the
New Lender shall become a Party as a “Lender” and will be bound by
obligations equivalent to the Relevant
Obligations.
|
|
(d)
|
Lenders
may utilise procedures other than those set out in this Clause 26.6
to assign their rights under the Finance Documents (but not, without the
consent of the relevant Obligor or unless in accordance with
Clause 26.5 (
Procedure for
transfer
), to obtain a release by that Obligor from the obligations
owed to that Obligor by the Lenders nor the assumption of equivalent
obligations by a New Lender)
provided that
they
comply with the conditions set out in Clause 26.2 (
Conditions of assignment or
transfer
).
|
26.7
|
Copy
of Transfer Certificate or Assignment
Agreement
|
26.8
|
Additional
Lenders
|
|
(a)
|
A
bank or financial institution may become an Additional Lender, with the
prior consent of the Facility Agent and the Borrower, at any time prior to
the day falling three (3) Business Days before the last day of
Availability Period, by executing and delivering to the Facility Agent a
duly completed Accession Deed.
|
|
(b)
|
For
the avoidance of doubt, following the accession of an Additional
Lender:
|
|
(i)
|
the
Commitment of that Additional Lender shall be the amount in CZK set forth
in the Accession Deed (and the amount of any other Commitment transferred
to it under this Agreement) in each case to the extent not cancelled,
reduced or transferred by it under this Agreement;
and
|
|
(ii)
|
the
Total Commitments shall be increased by the amount corresponding to the
Commitment of that Additional
Lender.
|
26.9
|
Accession
of Hedge Counterparties
|
26.10
|
Security
over Lenders’ rights
|
|
(a)
|
any
charge, assignment or other Security to secure obligations to a federal
reserve or central bank; and
|
|
(b)
|
in
the case of any Lender which is a fund, any charge, assignment or other
Security granted to any holders (or trustee or representatives of holders)
of obligations owed, or securities issued, by that Lender as security for
those obligations or
securities,
|
|
(i)
|
release
a Lender from any of its obligations under the Finance Documents or
substitute the beneficiary of the relevant charge, assignment or other
Security for the Lender as a party to any of the Finance Documents;
or
|
|
(ii)
|
require
any payments to be made by an Obligor or grant to any person any more
extensive rights than those required to be made or granted to the relevant
Lender under the Finance Documents.
|
26.11
|
Pro
rata interest settlement
|
|
(a)
|
any
interest or fees in respect of the relevant participation which are
expressed to accrue by reference to the lapse of time shall continue to
accrue in favour of the Existing Lender up to but excluding the Transfer
Date (“
Accrued
Amounts
”) and shall become due and payable to the Existing Lender
(without further interest accruing on them) on the last day of the current
Interest Period (or, if the Interest Period is longer than six Months, on
the next of the dates which falls at six Monthly intervals after the first
day of that Interest Period); and
|
|
(b)
|
the
rights assigned or transferred by the Existing Lender will not include the
right to the Accrued Amounts so that, for the avoidance of
doubt:
|
|
(i)
|
when
the Accrued Amounts become payable, those Accrued Amounts will be payable
for the account of the Existing Lender;
and
|
|
(ii)
|
the
amount payable to the New Lender on that date will be the amount which
would, but for the application of this Clause 26.11, have been
payable to it on that date, but after deduction of the Accrued
Amounts.
|
27.
|
RESTRICTION
ON DEBT PURCHASE TRANSACTIONS
|
27.1
|
Prohibition
on Debt Purchase Transactions by the Parent
Group
|
28.
|
CHANGES
TO THE OBLIGORS
|
28.1
|
Assignment
and transfers by Obligors
|
28.2
|
Additional
Guarantors
|
|
(a)
|
Subject
to compliance with the provisions of paragraphs (c) and (d) of
Clause 22.8 (“
Know
your customer” checks
), the Parent may request that any of its
wholly-owned Subsidiaries become a
Guarantor.
|
|
(b)
|
A
member of the Parent Group shall become an Additional Guarantor
if:
|
|
(i)
|
the
Parent and the proposed Additional Guarantor deliver to the Facility Agent
a duly completed and executed Accession Deed;
and
|
|
(ii)
|
the
Facility Agent has received all of the documents and other evidence listed
in Part II of Schedule 2 (
Conditions Precedent
)
in relation to that Additional Guarantor, each in form and substance
satisfactory to the Facility Agent.
|
|
(c)
|
The
Facility Agent shall notify the Parent and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to it)
all the documents and other evidence listed in Part II of Schedule 2
(
Conditions
precedent
).
|
28.3
|
Repetition
of Representations
|
29.
|
ROLE
OF THE FACILITY AGENT, THE SECURITY AGENT, THE ARRANGER AND
OTHERS
|
29.1
|
Appointment
of the Facility Agent and the Security
Agent
|
|
(a)
|
Each
of the Arranger, the Lenders and the Security Agent appoints the Facility
Agent to act as its agent under and in connection with the Finance
Documents.
|
|
(b)
|
Each
of the Arranger, the Lenders and the Security Agent authorises the
Facility Agent to exercise the rights, powers, authorities and discretions
specifically given to the Facility Agent under or in connection with the
Finance Documents together with any other incidental rights, powers,
authorities and discretions.
|
|
(c)
|
Each
of the Secured Parties appoints the Security Agent to act as its agent
under and in connection with the Finance
Documents.
|
|
(d)
|
Each
of the Secured Parties authorises the Security Agent to exercise the
rights, powers, authorities and discretions specifically given to the
Security Agent under or in connection with the Finance Documents together
with any other incidental rights, powers, authorities and
discretions.
|
29.2
|
Duties
of the Facility Agent and the Security
Agent
|
|
(a)
|
Subject
to paragraph (b) below, the Facility Agent and the Security Agent
shall promptly forward to a Party the original or a copy of any document
which is delivered to the Facility Agent or, as applicable, the Security
Agent for that Party by any other
Party.
|
|
(b)
|
Without
prejudice to Clause 26.7 (
Copy of Transfer Certificate
or Assignment Agreement
), paragraph (a) above shall not apply
to any Transfer Certificate or any Assignment
Agreement.
|
|
(c)
|
Except
where a Finance Document specifically provides otherwise, neither the
Facility Agent, nor the Security Agent is obliged to review or check the
adequacy, accuracy or completeness of any document it forwards to another
Party.
|
|
(d)
|
If
the Facility Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the other Finance
Parties.
|
|
(e)
|
If
the Facility Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than the
Facility Agent, the Arranger or the Security Agent) under this Agreement
it shall promptly notify the other Finance
Parties.
|
|
(f)
|
The
duties of the Facility Agent and the Security Agent under the Finance
Documents are solely mechanical and administrative in
nature.
|
29.3
|
Role
of the Arranger
|
29.4
|
No
fiduciary duties
|
|
(a)
|
Nothing
in this Agreement constitutes the Facility Agent or the Arranger as a
trustee or fiduciary of any other
person.
|
|
(b)
|
None
of the Facility Agent, the Security Agent or the Arranger shall be bound
to account to any Lender for any sum or the profit element of any sum
received by it for its own
account.
|
29.5
|
Business
with the Parent Group
|
29.6
|
Rights
and discretions
|
|
(a)
|
The
Facility Agent and the Security Agent may rely
on:
|
|
(i)
|
any
representation, notice or document believed by it to be genuine, correct
and appropriately authorised; and
|
|
(ii)
|
any
statement made by a director, authorised signatory or employee of any
person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to
verify.
|
|
(b)
|
The
Facility Agent and the Security Agent may assume (unless it has received
notice to the contrary in its capacity as agent for the Lenders)
that:
|
|
(i)
|
no
Default has occurred (unless it has actual knowledge of a Default arising
under Clause 25.1 (
Non-payment
));
|
|
(ii)
|
any
right, power, authority or discretion vested in any Party or the Majority
Lenders has not been exercised; and
|
|
(iii)
|
any
notice or request made by the Borrower (other than a Utilisation Request
or an Extension Request) is made on behalf of and with the consent and
knowledge of all the Obligors.
|
|
(c)
|
Each
of the Facility Agent and the Security Agent may engage, pay for and rely
on the advice or services of any lawyers, accountants, surveyors or other
experts.
|
|
(d)
|
Each
of the Facility Agent and the Security Agent may act in relation to the
Finance Documents through its respective personnel and
agents.
|
|
(e)
|
Each
of the Facility Agent and the Security Agent may disclose to any other
Party any information it reasonably believes it has received as the
Facility Agent and/or the Security Agent (as applicable) under this
Agreement.
|
|
(f)
|
Without
prejudice to the generality of paragraph (e) above, the Facility
Agent may disclose the identity of a Defaulting Lender to the other
Finance Parties and the Borrower and shall disclose the same upon the
written request of the Parent or the Majority
Lenders.
|
|
(g)
|
Notwithstanding
any other provision of any Finance Document to the contrary, none of the
Facility Agent, the Security Agent or the Arranger is obliged to do or
omit to do anything if it would or might in its reasonable opinion
constitute a breach of any law or regulation or a breach of a fiduciary
duty or duty of
confidentiality.
|
|
(h)
|
The
Facility Agent is not obliged to disclose to any Finance Party any details
of the rate notified to the Facility Agent by any Lender or Alternative
Reference Bank or the identity of any such Lender or Alternative Reference
Bank for the purpose of paragraph (a)(ii) of Clause 13.2 (
Market
Disruption
).
|
29.7
|
Majority
Lenders’ instructions
|
|
(a)
|
Unless
a contrary indication appears in a Finance Document, each of the Facility
Agent and the Security Agent shall (i) exercise any right, power,
authority or discretion vested in it as Facility Agent and/or Security
Agent (as applicable) in accordance with any instructions given to it by
the Majority Lenders (or, if so instructed by the Majority Lenders,
refrain from exercising any right, power, authority or discretion vested
in it as Facility Agent and/or Security Agent (as applicable)) and
(ii) not be liable for any act (or omission) if it acts (or refrains
from taking any action) in accordance with an instruction of the Majority
Lenders.
|
|
(b)
|
Unless
a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders will be binding on all the Finance
Parties.
|
|
(c)
|
Each
of the Facility Agent and the Security Agent may refrain from acting in
accordance with the instructions of the Majority Lenders (or, if
appropriate, the Lenders) until it has received such security as it may
require for any cost, loss or liability (together with any associated VAT)
which it may incur in complying with the
instructions.
|
|
(d)
|
In
the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) each of the Facility Agent and the Security
Agent, may act (or refrain from taking action) as it considers to be in
the best interest of the Lenders.
|
|
(e)
|
Neither
the Facility Agent, nor the Security Agent is authorised to act on behalf
of a Lender (without first obtaining that Lender’s consent) in any legal
or arbitration proceedings relating to any Finance
Document. This paragraph (e) shall not apply to any legal
or arbitration proceeding relating to the perfection, preservation or
protection of rights under the Transaction Security Documents or
enforcement of the Transaction Security or Transaction Security
Documents.
|
29.8
|
Responsibility
for documentation
|
|
(a)
|
is
responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Facility Agent, the
Arranger, the Security Agent, an Obligor or any other person given in or
in connection with any Finance Document or the Information Package or the
transactions contemplated in the Finance
Documents;
|
|
(b)
|
is
responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or the Transaction Security or any
other agreement, arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document or the
Transaction Security; or
|
|
(c)
|
is
responsible for any determination as to whether any information provided
or to be provided to any Finance Party is non-public information the use
of which may be regulated or prohibited by applicable law or regulation
relating to insider dealing or
otherwise.
|
29.9
|
Exclusion
of liability
|
|
(a)
|
Without
limiting paragraph (b) below (and without prejudice to the provisions
of paragraph (e) of Clause 32.11 (
Disruption to Payment Systems
etc.)
), neither the Facility Agent, nor the Security
Agent will be liable (including, without limitation, for
negligence or any other category of liability whatsoever) for any action
taken by it under or in connection with any Finance Document or the
Transaction Security, unless directly caused by its gross negligence or
wilful misconduct.
|
|
(b)
|
No
Party (other than the Facility Agent or (in relation to officers,
employees or agents of the Security Agent or any Receiver or Delegate) the
Security Agent) may take any proceedings against any officer, employee or
agent of the Facility Agent or the Security Agent (as applicable) or any
Receiver or Delegate, in respect of any claim it might have against the
Facility Agent or the Security Agent or in respect of any act or omission
of any kind by that officer, employee or agent, Receiver or Delegate in
relation to any Finance Document or any Transaction Document and any
officer, employee or agent of the Facility Agent and the Security Agent
and any Receiver and Delegate may rely on this Clause subject to
Clause 1.6 (
Third
party rights
) and the provisions of the Third Parties
Act.
|
|
(c)
|
Neither
the Facility Agent nor the Security Agent will be liable for any delay (or
any related consequences) in crediting an account with an amount required
under the Finance Documents to be paid by it if it has taken all necessary
steps as soon as reasonably practicable to comply with the regulations or
operating procedures of any recognised clearing or settlement system used
by it for that purpose.
|
|
(d)
|
Nothing
in this Agreement shall oblige the Facility Agent, the Security Agent or
the Arranger to carry out any “know your customer” or other checks in
relation to any person on behalf of any Lender and each Lender confirms to
the Facility Agent, the Security Agent and the Arranger that it is solely
responsible for any such checks it is required to carry out and that it
may not rely on any statement in relation to such checks made by the
Facility Agent, the Security Agent or the
Arranger.
|
29.10
|
Lenders’
indemnity to the Facility Agent and the Security
Agent
|
29.11
|
Resignation
of the Facility Agent and/or the Security
Agent
|
|
(a)
|
The
Facility Agent and/or the Security Agent may resign and appoint one of its
Affiliates acting through an office in the Czech Republic as successor
Facility Agent and/or Security Agent, as the case may be, by giving notice
to the other Finance Parties and the
Borrower.
|
|
(b)
|
Alternatively
the Facility Agent and/or the Security Agent may resign by giving
30 days notice to the other Finance Parties and the Borrower, in
which case the Majority Lenders (after consultation with the Borrower) may
appoint a successor Facility Agent and/or Security Agent (as
applicable).
|
|
(c)
|
If
the Majority Lenders have not appointed a successor Facility Agent and/or
Security Agent (as applicable) in accordance with paragraph (a) above
within 20 days after notice of resignation was given, the retiring
Facility Agent and/or the Security Agent may (after consultation with the
Borrower) appoint a successor Facility Agent and/or Security Agent (as
applicable) (acting through an office in the Czech
Republic).
|
|
(d)
|
If
the Facility Agent and/or the Security Agent wishes to resign because
(acting reasonably) it has concluded that it is no longer appropriate for
it to remain as agent and the Facility Agent and/or the Security Agent is
entitled to appoint a successor Facility Agent and/or Security Agent under
paragraph (c) above, the Facility Agent and/or the Security Agent may
(if it concludes (acting reasonably) that it is necessary to do so in
order to persuade the proposed successor agent to become a party to this
Agreement as Facility Agent and/or the Security Agent) agree with the
proposed successor agent amendments to this Clause 29 and any other
term of this Agreement dealing with the rights or obligations of the
Facility Agent and/or the Security Agent consistent with then current
market practice for the appointment and protection of agents together with
any reasonable amendments to the agency fee payable under this Agreement
which are consistent with the successor agent’s normal fee rates and those
amendments will bind the Parties.
|
|
(e)
|
The
retiring Facility Agent and/or Security Agent (as applicable) shall, at
its own cost, make available to its successor agent such documents and
records and provide such assistance as such successor agent may reasonably
request for the purposes of performing its functions as Facility Agent
and/or Security Agent (as applicable) under the Finance
Documents.
|
|
(f)
|
The
resignation notice of the Facility Agent and/or the Security Agent (as
applicable) shall only take effect upon the appointment of a successor
Facility Agent and/or Security Agent, as the case may
be.
|
|
(g)
|
Upon
the appointment of a successor, the retiring Facility Agent and/or
Security Agent shall be discharged from any further obligation in respect
of the Finance Documents but shall remain entitled to the benefit of this
Clause 29. Any successor and each of the other Parties
shall have the same rights and obligations amongst themselves as they
would have had if such successor had been an original
Party.
|
29.12
|
Replacement
of the Facility Agent and/or the Security
Agent
|
|
(a)
|
After
consultation with the Borrower, the Majority Lenders may, by giving
30 days’ notice to the Facility Agent (or, at any time the Facility
Agent is an Impaired Agent, by giving any shorter notice determined by the
Majority Lenders) and/or the Security Agent (as applicable) replace the
Facility Agent and/or the Security Agent (as applicable) by appointing a
successor agent (acting through an office in the Czech
Republic).
|
|
(b)
|
The
retiring Facility Agent and/or the Security Agent (as applicable) shall
(at its own cost if it is an Impaired Agent and otherwise at the expense
of the Lenders) make available to the successor Facility Agent and/or the
Security Agent (as applicable) such documents and records and provide such
assistance as such successor agent may reasonably request for the purposes
of performing its functions as Facility Agent or Security Agent (as
applicable) under the Finance
Documents.
|
|
(c)
|
The
appointment of the successor Facility Agent and/or the Security Agent (as
applicable) shall take effect on the date specified in the notice from the
Majority Lenders to the retiring Facility Agent and/or the Security Agent
(as applicable). As from this date, the retiring Facility Agent
and/or the Security Agent (as applicable) shall be discharged from any
further obligation in respect of the Finance Documents but shall remain
entitled to the benefit of this Clause 29 (and any agency fees for
the account of the retiring Facility Agent and/or the Security Agent (as
applicable) shall cease to accrue from (and shall be payable on) that
date).
|
|
(d)
|
Any
successor Facility Agent and/or Security Agent (as applicable) and each of
the other Parties shall have the same rights and obligations amongst
themselves as they would have had if such successor had been an original
Party.
|
29.13
|
Confidentiality
|
|
(a)
|
In
acting as agent for the Finance Parties, each of the Facility Agent and
the Security Agent 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.
|
|
(b)
|
If
information is received by another division or department of the Facility
Agent and/or Security Agent (as applicable), it may be treated as
confidential to that division or department and the Facility Agent and/or
Security Agent (as applicable) shall not be deemed to have notice of
it.
|
|
(c)
|
Notwithstanding
any other provision of any Finance Document to the contrary, neither the
Facility Agent, the Security Agent, nor the Arranger is obliged to
disclose to any other person (i) any confidential information or
(ii) any other information if the disclosure would or might in its
reasonable opinion constitute a breach of any law or a breach of a
fiduciary duty.
|
29.14
|
Relationship
with the Lenders
|
|
(a)
|
Subject
to Clause 26.11 (
Pro rata interest
settlement
), each of the Facility Agent and the Security Agent may
treat the person shown in its records as Lender at the opening of business
(in the place of the principal office of the Facility Agent and/or
the Security Agent as notified to the Finance Parties from time to
time) as the Lender acting through its Facility
Office:
|
|
(i)
|
entitled
to or liable for any payment due under any Finance Document on that day;
and
|
|
(ii)
|
entitled
to receive and act upon any notice, request, document or communication or
make any decision or determination under any Finance Document made or
delivered on that day,
|
|
(b)
|
Each
Lender shall supply the Facility Agent with any information required by
the Facility Agent in order to calculate the Mandatory Cost in accordance
with Schedule 4 (
Mandatory Cost
formula
).
|
|
(c)
|
Each
Lender shall supply the Facility Agent with any information that the
Security Agent may reasonably specify (through the Facility Agent) as
being necessary or desirable to enable the Security Agent to perform its
functions as Security Agent. Each Lender shall deal with the
Security Agent exclusively through the Facility Agent and shall not deal
directly with the Security Agent.
|
|
(d)
|
Any
Lender may by notice to the Facility Agent and/or the Security Agent
appoint a person to receive on its behalf all notices, communications,
information and documents to be made or despatched to that Lender under
the Finance Documents. Such notice shall contain the address,
fax number and (where communication by electronic mail or other electronic
means is permitted under Clause 34.6 (
Electronic
communication
)) electronic mail address and/or any other
information required to enable the sending and receipt of information by
that means (and, in each case, the department or officer, if any, for
whose attention communication is to be made) and be treated as a
notification of a substitute address, fax number, electronic mail address,
department and officer by that Lender for the purposes of Clause 34.2
(
Addresses
) and
paragraph (a)(iii) of Clause 34.6 (
Electronic
communication
) and the Facility Agent and/or Security Agent shall
be entitled to treat such person as the person entitled to receive all
such notices, communications, information and documents as though that
person were that Lender.
|
29.15
|
Credit
appraisal by the Lenders
|
|
(a)
|
the
financial condition, status and nature of each member of the Parent
Group;
|
|
(b)
|
the
legality, validity, effectiveness, adequacy or enforceability of any
Finance Document and the Transaction Security and any other agreement,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document or the Transaction
Security;
|
|
(c)
|
whether
that Secured Party has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or in
connection with any Finance Document, the Transaction Security, the
transactions contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance
Document;
|
|
(d)
|
the
adequacy, accuracy and/or completeness of the Information Package, the
Valuation Report and any other information provided by the Facility Agent,
the Security Agent, any Party or by any other person under or in
connection with any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with any
Finance Document; and
|
|
(e)
|
the
right or title of any person in or to, or the value or sufficiency of any
part of the Charged Property, the priority of any of the Transaction
Security or the existence of any Security affecting the Charged
Property.
|
29.16
|
Reference
Banks and Alternative Reference
Banks
|
29.17
|
Deduction
from amounts payable by the Facility Agent and/or the Security
Agent
|
29.18
|
The
Security Agent
|
29.19
|
Declaration
of Trust
|
29.20
|
Provisions
supplemental to the provisions of the Trustee
Acts
|
29.21
|
Non-Trust
Jurisdictions
|
29.22
|
Covenant
to Pay
|
29.23
|
Parallel
Debt Obligation
|
|
(a)
|
Each
Obligor hereby agrees and covenants with the Security Agent by way of an
acknowledgement of debt that it shall pay to the Security Agent sums equal
to, and in the currency of, the Secured Obligations owing by it under the
Finance Documents (the “
Principal Obligations
”)
as and when the same fall due for payment under the Finance Documents (the
“
Parallel
Obligations
”).
|
|
(b)
|
The
Security Agent shall have its own independent right to demand payment of
the Parallel Obligations by the Obligors (such demand to be made in
accordance with, and only in the circumstances permitted under, the
Finance Documents and only if permitted by this Agreement). The
rights of the Finance Parties (other than the Security Agent) or any
person which a Finance Party represents to receive payment of the
Principal Obligations are several from the rights of the Security Agent to
receive payment of the Parallel Obligations provided that the payment by
an Obligor of its Parallel Obligations to the Security Agent in accordance
with this Clause 29.23 (
Parallel Debt
Obligation
) shall be a good discharge of the corresponding
Principal Obligations and the payment by an Obligor of its Principal
Obligations in accordance with the provisions of the Finance Documents
shall be a good discharge of the corresponding Parallel
Obligations. In the event of a good discharge of any Principal
Obligations of the Security Agent shall not be entitled to demand payment
of the corresponding Parallel Obligations and such Parallel Obligations
shall be discharged to the same extent. In the event of a good
discharge of any Parallel Obligations the Finance Parties or any person
which a Finance Party represents shall not be entitled to demand payment
of the corresponding Principal Obligations and such Principal Obligations
shall be discharged to the same
extent.
|
29.24
|
No
Independent power
|
29.25
|
Reliance
and engagement letters
|
30.
|
CONDUCT
OF BUSINESS BY THE FINANCE PARTIES
|
|
(a)
|
interfere
with the right of any Finance Party to arrange its affairs (tax or
otherwise) in whatever manner it thinks
fit;
|
|
(b)
|
oblige
any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim;
or
|
|
(c)
|
oblige
any Finance Party to disclose any information relating to its affairs (tax
or otherwise) or any computations in respect of
Tax.
|
31.
|
SHARING
AMONG THE FINANCE PARTIES
|
31.1
|
Payments
to Finance Parties
|
|
(a)
|
the
Recovering Finance Party shall, within three Business Days, notify details
of the receipt or recovery, to the Facility
Agent;
|
|
(b)
|
the
Facility Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Finance Party would have been paid had
the receipt or recovery been received or made by the Facility Agent and
distributed in accordance with Clause 32 (
Payment mechanics
),
without taking account of any Tax which would be imposed on the Facility
Agent in relation to the receipt, recovery or distribution;
and
|
|
(c)
|
the
Recovering Finance Party shall, within three Business Days of demand by
the Facility Agent, pay to the Facility Agent an amount (the “
Sharing Payment
”) equal
to such receipt or recovery less any amount which the Facility Agent
determines may be retained by the Recovering Finance Party as its share of
any payment to be made, in accordance with Clause 32.6 (
Partial
payments
).
|
31.2
|
Redistribution
of payments
|
31.3
|
Recovering
Finance Party’s rights
|
31.4
|
Reversal
of redistribution
|
|
(a)
|
each
Sharing Finance Party shall, upon request of the Facility Agent, pay to
the Facility Agent for the account of that Recovering Finance Party an
amount equal to the appropriate part of its share of the Sharing Payment
(together with an amount as is necessary to reimburse that Recovering
Finance Party for its proportion of any interest on the Sharing Payment
which that Recovering Finance Party is required to pay) (the “
Redistributed Amount
”);
and
|
|
(b)
|
as
between the relevant Obligor and each relevant Sharing Finance Party, an
amount equal to the relevant Redistributed Amount will be treated as not
having been paid by that Obligor.
|
31.5
|
Exceptions
|
|
(a)
|
This
Clause 31 shall not apply to the extent that the Recovering Finance
Party would not, after making any payment pursuant to this Clause, have a
valid and enforceable claim against the relevant
Obligor.
|
|
(b)
|
A
Recovering Finance Party is not obliged to share with any other Finance
Party any amount which the Recovering Finance Party has received or
recovered as a result of taking legal or arbitration proceedings,
if:
|
|
(i)
|
it
notified the other Finance Party of the legal or arbitration proceedings;
and
|
|
(ii)
|
the
other Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal or
arbitration proceedings.
|
32.
|
PAYMENT
MECHANICS
|
32.1
|
Payments
to the Facility Agent
|
|
(a)
|
On
each date on which an Obligor or a Lender is required to make a payment
under a Finance Document, that Obligor or Lender shall make the same
available to the Facility Agent (unless a contrary indication appears in a
Finance Document) for value on the due date at the time and in such funds
specified by the Facility Agent as being customary at the time for
settlement of transactions in the relevant currency in the place of
payment.
|
|
(b)
|
Payment
shall be made to such account in the principal financial centre of the
country of that currency (or, in relation to euro, in a principal
financial centre in a Participating Member State or London) with such bank
as the Facility Agent specifies.
|
32.2
|
Distributions
by the Facility Agent
|
32.3
|
Distributions
to an Obligor
|
32.4
|
Clawback
|
|
(a)
|
Where
a sum is to be paid to the Facility Agent and/or the Security Agent (as
applicable) under the Finance Documents for another Party, the Facility
Agent and/or the Security Agent (as applicable) is not obliged to pay that
sum to that other Party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction that it
has actually received that sum.
|
|
(b)
|
If
the Facility Agent and/or the Security Agent (as applicable) pays an
amount to another Party and it proves to be the case that the Facility
Agent and/or the Security Agent (as applicable) had not actually received
that amount, then the Party to whom that amount (or the proceeds of any
related exchange contract) was paid by the Facility Agent and/or the
Security Agent (as applicable) shall on demand refund the same to the
Facility Agent and/or the Security Agent (as applicable) together with
interest on that amount from the date of payment to the date of receipt by
the Facility Agent and/or the Security Agent (as applicable), calculated
by the Facility Agent and/or the Security Agent (as applicable) to reflect
its cost of funds.
|
32.5
|
Impaired
Agent
|
|
(a)
|
If,
at any time, the Facility Agent becomes an Impaired Agent, an Obligor or a
Lender which is required to make a payment under the Finance Documents to
the Facility Agent in accordance with Clause 32.1 (
Payments to the Facility
Agent
) may instead either pay that amount direct to the required
recipient or pay that amount to an interest-bearing account held with an
Acceptable Bank within the meaning of paragraph (a) of the definition
of “
Acceptable
Bank
” and in relation to which no Insolvency Event has occurred and
is continuing, in the name of the Obligor or the Lender making the payment
and designated as a trust account for the benefit of the Party or Parties
beneficially entitled to that payment under the Finance
Documents. In each case such payments must be made on the due
date for payment under the Finance
Documents.
|
|
(b)
|
All
interest accrued on the amount standing to the credit of the trust account
shall be for the benefit of the beneficiaries of that trust account
pro rata
to their
respective entitlements.
|
|
(c)
|
A
Party which has made a payment in accordance with this Clause 32.4
shall be discharged of the relevant payment obligation under the Finance
Documents and shall not take any credit risk with respect to the amounts
standing to the credit of the trust
account.
|
|
(d)
|
Promptly
upon the appointment of a successor Facility Agent in accordance with
Clause 29.12 (
Replacement of the Facility
Agent
), each Party which has made a payment to a trust account in
accordance with this Clause 32.4 shall give all requisite
instructions to the bank with whom the trust account is held to transfer
the amount (together with any accrued interest) to the successor Facility
Agent for distribution in accordance with Clause 32.2 (
Distributions by the Facility
Agent
).
|
32.6
|
Partial
payments
|
|
(a)
|
If
the Facility Agent receives a payment for application against amounts due
in respect of any Finance Documents that is insufficient to discharge all
the amounts then due and payable by an Obligor under those Finance
Documents, the Facility Agent shall apply that payment towards the
obligations of that Obligor under those Finance Documents in the following
order:
|
|
(i)
|
first
, in or towards
payment
pro rata
of any unpaid fees, costs and expenses of the Facility Agent and the
Security Agent under those Finance
Documents;
|
|
(ii)
|
secondly
, in or towards
payment
pro rata
of any accrued interest, fee or commission due but unpaid under those
Finance Documents;
|
|
(iii)
|
thirdly
, in or towards
payment
pro rata
of any principal due but unpaid under those Finance Documents;
and
|
|
(iv)
|
fourthly
, in or towards
payment
pro rata
of any other sum due but unpaid under the Finance
Documents.
|
|
(b)
|
The
Facility Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (iv)
above.
|
|
(c)
|
Paragraphs (a)
and (b) above will override any appropriation made by an
Obligor.
|
32.7
|
Set-off
by Obligors
|
32.8
|
Business
Days
|
|
(a)
|
Any
payment which is due to be made on a day that is not a Business Day shall
be made on the next Business Day in the same calendar month (if there is
one) or the preceding Business Day (if there is
not).
|
|
(b)
|
During
any extension of the due date for payment of any principal or Unpaid Sum
under this Agreement interest is payable on the principal or Unpaid Sum at
the rate payable on the original due
date.
|
32.9
|
Currency
of account
|
|
(a)
|
Subject
to paragraphs (b) to (e) below, CZK is the currency of account and
payment for any sum due from an Obligor under any Finance
Document.
|
|
(b)
|
A
repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall
be made in the currency in which that Loan or Unpaid Sum is denominated on
its due date.
|
|
(c)
|
Each
payment of interest shall be made in the currency in which the sum in
respect of which the interest is payable was denominated when that
interest accrued.
|
|
(d)
|
Each
payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are
incurred.
|
|
(e)
|
Any
amount expressed to be payable in a currency other than CZK shall be paid
in that other currency.
|
32.10
|
Change
of currency
|
|
(a)
|
Unless
otherwise prohibited by law, if more than one currency or currency unit
are at the same time recognised by the central bank of any country as the
lawful currency of that country,
then:
|
|
(i)
|
any
reference in the Finance Documents to, and any obligations arising under
the Finance Documents in, the currency of that country shall be translated
into, or paid in, the currency or currency unit of that country designated
by the Facility Agent (after consultation with the Borrower);
and
|
|
(ii)
|
any
translation from one currency or currency unit to another shall be at the
official rate of exchange recognised by the central bank for the
conversion of that currency or currency unit into the other, rounded up or
down by the Facility Agent (acting
reasonably).
|
|
(b)
|
If
a change in any currency of a country occurs, this Agreement will, to the
extent the Facility Agent (acting reasonably and after consultation with
the Borrower) specifies to be necessary, be amended to comply with any
generally accepted conventions and market practice in the Prague interbank
market and otherwise to reflect the change in
currency.
|
32.11
|
Disruption
to Payment Systems etc.
|
|
(a)
|
the
Facility Agent may, and shall if requested to do so by the Borrower,
consult with the Borrower with a view to agreeing with the Borrower such
changes to the operation or administration of the Facility as the Facility
Agent may deem necessary in the
circumstances;
|
|
(b)
|
the
Facility Agent shall not be obliged to consult with the Borrower in
relation to any changes mentioned in paragraph (a) if, in its
opinion, it is not practicable to do so in the circumstances and, in any
event, shall have no obligation to agree to such
changes;
|
|
(c)
|
the
Facility Agent may consult with the Finance Parties in relation to any
changes mentioned in paragraph (a) but shall not be obliged to do so
if, in its opinion, it is not practicable to do so in the
circumstances;
|
|
(d)
|
any
such changes agreed upon by the Facility Agent and the Borrower shall
(whether or not it is finally determined that a Disruption Event has
occurred) be binding upon the Parties as an amendment to (or, as the case
may be, waiver of) the terms of the Finance Documents notwithstanding the
provisions of Clause 38 (
Amendments and
Waivers
);
|
|
(e)
|
the
Facility Agent shall not be liable for any damages, costs or losses
whatsoever (including, without limitation for negligence, gross negligence
or any other category of liability whatsoever but not including any claim
based on the fraud of the Facility Agent) arising as a result of its
taking, or failing to take, any actions pursuant to or in connection with
this Clause 32.11; and
|
|
(f)
|
the
Facility Agent shall notify the Finance Parties of all changes agreed
pursuant to paragraph (d)
above.
|
33.
|
SET-OFF
|
34.
|
NOTICES
|
34.1
|
Communications
in writing
|
34.2
|
Addresses
|
|
(a)
|
in
the case of an Original Obligor, that identified with its name
below;
|
|
(b)
|
in
the case of each Lender, or any other Obligor, that notified in writing to
the Facility Agent on or prior to the date on which it becomes a Party;
and
|
|
(c)
|
in
the case of the Facility Agent or the Security Agent, that identified with
its name below,
|
34.3
|
Delivery
|
|
(a)
|
Any
communication or document made or delivered by one person to another under
or in connection with the Finance Documents will only be
effective:
|
|
(i)
|
if
by way of fax, when received in legible form;
or
|
|
(ii)
|
if
by way of letter, when it has been left at the relevant address or five
Business Days after being deposited in the post postage prepaid in an
envelope addressed to it at that
address,
|
|
(b)
|
Any
communication or document to be made or delivered to the Facility Agent or
the Security Agent will be effective only when actually received by the
Facility Agent or Security Agent and then only if it is expressly marked
for the attention of the department or officer identified with the
Facility Agent’s or Security Agent’s signature below (or any substitute
department or officer as the Facility Agent or Security Agent shall
specify for this purpose).
|
|
(c)
|
All
notices from or to an Obligor shall be sent through the Facility
Agent.
|
|
(d)
|
Any
communication or document made or delivered to the Borrower in
accordance with this Clause 34.3 will be deemed to have been made or
delivered to each of the Obligors.
|
34.4
|
Notification
of address and fax number
|
34.5
|
Communication
when Facility Agent is Impaired
Agent
|
34.6
|
Electronic
communication
|
|
(a)
|
Any
communication to be made between the Facility Agent or the Security Agent
and a Lender under or in connection with the Finance Documents may be made
by electronic mail or other electronic means, if the Facility Agent, the
Security Agent and the relevant
Lender:
|
|
(i)
|
agree
that, unless and until notified to the contrary, this is to be an accepted
form of communication;
|
|
(ii)
|
notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by
that means; and
|
|
(iii)
|
notify
each other of any change to their address or any other such information
supplied by them.
|
|
(b)
|
Any
electronic communication made between the Facility Agent and a Lender or
the Security Agent will be effective only when actually received in
readable form and in the case of any electronic communication made by a
Lender to the Facility Agent or the Security Agent only if it is addressed
in such a manner as the Facility Agent or Security Agent shall specify for
this purpose.
|
34.7
|
Use
of websites
|
|
(a)
|
The
Parent may satisfy its obligation under this Agreement to deliver any
information in relation to those Lenders (the “
Website Lenders
”) who
accept this method of communication by posting this information onto an
electronic website designated by the Parent and the Facility Agent (the
“
Designated
Website
”) if:
|
|
(i)
|
the
Facility Agent expressly agrees (after consultation with each of the
Lenders) that it will accept communication of the information by this
method;
|
|
(ii)
|
both
the Parent and the Facility Agent are aware of the address of
and any relevant password specifications for the Designated Website;
and
|
|
(iii)
|
the
information is in a format previously agreed between the Parent and the
Facility Agent.
|
|
(b)
|
The
Facility Agent shall supply each Website Lender with the address of and
any relevant password specifications for the Designated Website following
designation of that website by the Parent and the Facility
Agent.
|
|
(c)
|
The
Parent shall promptly upon becoming aware of its occurrence notify the
Facility Agent if:
|
|
(i)
|
the
Designated Website cannot be accessed due to technical
failure;
|
|
(ii)
|
the
password specifications for the Designated Website
change;
|
|
(iii)
|
any
new information which is required to be provided under this Agreement is
posted onto the Designated Website;
|
|
(iv)
|
any
existing information which has been provided under this Agreement and
posted onto the Designated Website is amended;
or
|
|
(v)
|
the
Parent becomes aware that the Designated Website or any information posted
onto the Designated Website is or has been infected by any electronic
virus or similar software.
|
|
(d)
|
Any
Website Lender may request, through the Facility Agent, one paper copy of
any information required to be provided under this Agreement which is
posted onto the Designated Website. The Parent shall at its own
cost comply with any such request within ten Business
Days.
|
34.8
|
English
language
|
|
(a)
|
Any
notice given under or in connection with any Finance Document must be in
English.
|
|
(b)
|
All
other documents provided under or in connection with any Finance Document
must be:
|
|
(i)
|
in
English; or
|
|
(ii)
|
if
not in English, and if so required by the Facility Agent, accompanied by a
certified English translation and, in this case, the English translation
will prevail unless the document is a constitutional, statutory or other
official document.
|
35.
|
CALCULATIONS
AND CERTIFICATES
|
35.1
|
Accounts
|
35.2
|
Certificates
and determinations
|
35.3
|
Day
count convention
|
36.
|
PARTIAL
INVALIDITY
|
37.
|
REMEDIES
AND WAIVERS
|
38.
|
AMENDMENTS
AND WAIVERS
|
38.1
|
Required
consents
|
|
(a)
|
Subject
to Clause 38.2 (
Exceptions
) any term of
the Finance Documents (other than the Mandate Letter) may be amended or
waived only with the consent of the Majority Lenders and the Borrower and
any such amendment or waiver will be binding on all
Parties.
|
|
(b)
|
The
Facility Agent may effect, on behalf of any Finance Party, any amendment
or waiver permitted by this
Clause 38.
|
|
(c)
|
Each
Obligor agrees to any such amendment or waiver permitted by this
Clause 38 which is agreed to by the Borrower. This
includes any amendment or waiver which would, but for this
paragraph (c), require the consent of all of the
Guarantors.
|
38.2
|
Exceptions
|
|
(a)
|
An
amendment or waiver that has the effect of changing or which relates
to:
|
|
(i)
|
the
definition of “Majority Lenders” in Clause 1.1 (
Definitions
);
|
|
(ii)
|
an
extension to the date of payment of any amount under the Finance Documents
(other than in relation to Clause 7 (
Extension of Initial
Termination Date
) or Clause 9 (
Mandatory
Prepayment
));
|
|
(iii)
|
a
reduction in the Margin or a reduction in the amount of any payment of
principal, interest, fees or commission
payable;
|
|
(iv)
|
a
change in currency of payment of any amount under the Finance
Documents;
|
|
(v)
|
an
increase in or an extension of any Commitment or the Total
Commitments;
|
|
(vi)
|
a
change to the Borrowers or Guarantors other than in accordance with
Clause 28 (
Changes
to the Obligors
);
|
|
(vii)
|
any
provision which expressly requires the consent of all the
Lenders;
|
|
(viii)
|
Clause 2.2
(
Finance Parties’ rights
and obligations
), Clause 9 (
Mandatory prepayment
),
Clause 26 (
Changes
to the Lenders
) or this
Clause 38;
|
|
(ix)
|
(other
than as expressly permitted by the provisions of any Finance Document) the
nature or scope of:
|
|
(A)
|
the
guarantee and indemnity granted under Clause 20 (
Guarantee and
Indemnity
);
|
|
(B)
|
the
Charged Property;
|
|
(C)
|
the
manner in which the proceeds of enforcement of the Transaction Security
are distributed; or
|
|
(D)
|
any
arrangement to the order of priority set out in paragraph 2.1 (
Order of Application
)
of Schedule 13 (
Supplementary Security Agent
Provisions
),
|
|
(x)
|
the
release of any guarantee and indemnity granted under Clause 20 (
Guarantee and
Indemnity
) or of any Transaction Security unless permitted under
this Agreement or any other Finance Document or relating to a sale or
disposal of an asset which is the subject of the Transaction Security
where such sale or disposal is expressly permitted under this Agreement or
any other Finance Document,
|
|
(b)
|
An
amendment or waiver which relates to the rights or obligations of the
Facility Agent, the Arranger, the Security Agent or a Hedge Counterparty
(each in their capacity as such) may not be effected without the consent
of the Facility Agent, the Arranger, the Security Agent or, as the case
may be, that Hedge Counterparty.
|
|
(c)
|
If
any Lender fails to respond to a request for a consent, waiver, amendment
of or in relation to any of the terms of any Finance Document or other
vote of Lenders under the terms of this Agreement within 10 Business Days
(unless the Borrower and the Facility Agent agree to a longer time period
in relation to any request) of that request being made, its Commitment
and/or participation shall not be included for the purpose of calculating
the Total Commitments or participations under the Facility when
ascertaining whether any relevant percentage (including, for the avoidance
of doubt, unanimity) of Total Commitments and/or participations has been
obtained to approve that
request.
|
38.3
|
Replacement
of Lender
|
|
(a)
|
If
at any time:
|
|
(i)
|
any
Lender becomes a Non-Consenting Lender (as defined in paragraph (c)
below); or
|
|
(ii)
|
an
Obligor becomes obliged to repay any amount in accordance with
Clause 8.1 (
Illegality
) or to pay
additional amounts pursuant to Clause 16.1 (
Increased Costs
) or
Clause 15.2 (
Tax
gross-up
) to any Lender in excess of amounts payable to the other
Lenders generally,
|
|
(b)
|
The
replacement of a Lender pursuant to this Clause shall be subject to the
following conditions:
|
|
(i)
|
the
Borrower shall have no right to replace the Facility Agent or Security
Agent;
|
|
(ii)
|
neither
the Facility Agent nor the Lender shall have any obligation to the
Borrower to find a Replacement
Lender;
|
|
(iii)
|
in
the event of a replacement of a Non-Consenting Lender such replacement
must take place no later than 30 days after the date the
Non-Consenting Lender notifies the Borrower and the Facility Agent of its
failure or refusal to give a consent in relation to, or agree to any
waiver or amendment to the Finance Documents requested by the Borrower;
and
|
|
(iv)
|
in
no event shall the Lender replaced under this paragraph (b) be
required to pay or surrender to such Replacement Lender any of the fees
received by such Lender pursuant to the Finance
Documents.
|
|
(c)
|
In
the event that:
|
|
(i)
|
the
Borrower or the Facility Agent (at the request of the Borrower) has
requested the Lenders to give a consent in relation to, or to agree to a
waiver or amendment of, any provisions of the Finance
Documents;
|
|
(ii)
|
the
consent, waiver or amendment in question requires the approval of all the
Lenders; and
|
|
(iii)
|
Lenders
whose Commitment aggregate more than 70 per cent. of the Total
Commitments (or, if the Total Commitments have been reduced to zero,
aggregated more than 70 per cent. of the Total Commitments prior
to that reduction) have consented or agreed to such waiver or
amendment,
|
38.4
|
Disenfranchisement
of Defaulting Lenders
|
|
(a)
|
For
so long as a Defaulting Lender has any Available Commitment, in
ascertaining the Majority Lenders or whether any given percentage
(including, for the avoidance of doubt, unanimity) of the Total
Commitments have been obtained to approve any request for a consent,
waiver, amendment or other vote under the Finance Documents, that
Defaulting Lender’s Commitment will be reduced by the amount of its
Available Commitment.
|
|
(b)
|
For
the purposes of this Clause 38.4, the Facility Agent may assume that
the following Lenders are Defaulting
Lenders:
|
|
(i)
|
any
Lender which has notified the Facility Agent that it has become a
Defaulting Lender;
|
|
(ii)
|
any
Lender in relation to which it is aware that any of the events or
circumstances referred to in paragraphs (a), (b) or (c) of the
definition of “
Defaulting
Lender
” has occurred,
|
38.5
|
Replacement
of a Defaulting Lender
|
|
(a)
|
The
Borrower may, at any time a Lender has become and continues to be a
Defaulting Lender, by giving 10 Business Days’ prior written notice to the
Facility Agent and such Lender:
|
|
(i)
|
replace
such Lender by requiring such Lender to (and such Lender shall) transfer
pursuant to Clause 26 (
Changes to the Lenders
)
all (and not part only) of its rights and obligations under this
Agreement;
|
|
(ii)
|
require
such Lender to (and such Lender shall) transfer pursuant to Clause 26
(
Changes to the
Lenders
) all (and not part only) of the undrawn Revolving
Commitment of the Lender; or
|
|
(iii)
|
require
such Lender to (and such Lender shall) transfer pursuant to Clause 26
(
Changes to the
Lenders
) all (and not part only) of its rights and obligations in
respect of the Revolving Facility,
|
|
(b)
|
Any
transfer of rights and obligations of a Defaulting Lender pursuant to this
Clause shall be subject to the following
conditions:
|
|
(i)
|
the
Borrower shall have no right to replace the Facility Agent or Security
Agent;
|
|
(ii)
|
neither
the Facility Agent nor the Defaulting Lender shall have any obligation to
the Borrower to find a Replacement
Lender;
|
|
(iii)
|
the
transfer must take place no later than 30 days after the notice
referred to in paragraph (a) above;
and
|
|
(iv)
|
in
no event shall the Defaulting Lender be required to pay or surrender to
the Replacement Lender any of the fees received by the Defaulting Lender
pursuant to the Finance Documents.
|
39.
|
CONFIDENTIALITY
|
39.1
|
Confidential
Information
|
39.2
|
Disclosure
of Confidential Information
|
|
(a)
|
to
any of its Affiliates and any of its or their officers, directors,
employees, professional advisers, auditors, partners and Representatives
such Confidential Information as that Finance Party shall consider
appropriate if any person to whom the Confidential Information is to be
given pursuant to this paragraph (a) is informed in writing of its
confidential nature and that some or all of such Confidential Information
may be price-sensitive information except that there shall be no such
requirement to so inform if the recipient is subject to professional
obligations to maintain the confidentiality of the information or is
otherwise bound by requirements of confidentiality in relation to the
Confidential Information;
|
|
(b)
|
to
any person:
|
|
(i)
|
to
(or through) whom it assigns or transfers (or may potentially assign or
transfer) all or any of its rights and/or obligations under one or more
Finance Documents, to any potential Additional Lender, and to any of that
person’s Affiliates, Representatives and professional
advisers;
|
|
(ii)
|
with
(or through) whom it enters into (or may potentially enter into), whether
directly or indirectly, any sub-participation in relation to, or any other
transaction under which payments are to be made or may be made by
reference to, one or more Finance Documents and/or one or more Obligors
and to any of that person’s Affiliates, Representatives and professional
advisers;
|
|
(iii)
|
appointed
by any Finance Party or by a person to whom paragraph (b)(i) or (ii)
above applies to receive communications, notices, information or documents
delivered pursuant to the Finance Documents on its behalf (including,
without limitation, any person appointed under paragraph (d) of
Clause 29.14 (
Relationship with the
Lenders
));
|
|
(iv)
|
who
invests in or otherwise finances (or may potentially invest in or
otherwise finance), directly or indirectly, any transaction referred to in
paragraph (b)(i) or (b)(ii)
above;
|
|
(v)
|
to
whom information is required or requested to be disclosed by any court of
competent jurisdiction or any governmental, banking, taxation or other
regulatory authority or similar body, the rules of any relevant stock
exchange or pursuant to any applicable law or
regulation;
|
|
(vi)
|
to
whom or for whose benefit that Finance Party charges, assigns or otherwise
creates Security (or may do so) pursuant to Clause 26.9 (
Security over Lenders’
rights)
;
|
|
(vii)
|
to
whom information is required to be disclosed in connection with, and for
the purposes of, any litigation, arbitration, administrative or other
investigations, proceedings or
disputes;
|
|
(viii)
|
who
is a Party; or
|
|
(ix)
|
with
the consent of the Borrower;
|
|
(A)
|
in
relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person
to whom the Confidential Information is to be given has entered into a
Confidentiality Undertaking except that there shall be no requirement for
a Confidentiality Undertaking if the recipient is a professional adviser
and is subject to professional obligations to maintain the confidentiality
of the Confidential
Information;
|
|
(B)
|
in
relation to paragraph (b)(iv) above, the person to whom the
Confidential Information is to be given has entered into a Confidentiality
Undertaking or is otherwise bound by requirements of confidentiality in
relation to the Confidential Information they receive and is informed that
some or all of such Confidential Information may be price-sensitive
information;
|
|
(C)
|
in
relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person
to whom the Confidential Information is to be given is informed of its
confidential nature and that some or all of such Confidential Information
may be price-sensitive information except that there shall be no
requirement to so inform if, in the opinion of that Finance Party, it is
not practicable so to do in the
circumstances;
|
|
(c)
|
to
any person appointed by that Finance Party or by a person to whom
paragraph (b)(i) or (b)(ii) above applies to provide administration
or settlement services in respect of one or more of the Finance Documents
including without limitation, in relation to the trading of participations
in respect of the Finance Documents, such Confidential Information as may
be required to be disclosed to enable such service provider to provide any
of the services referred to in this paragraph (c) if the service
provider to whom the Confidential Information is to be given has entered
into a confidentiality agreement substantially in the form of the LMA
Master Confidentiality Undertaking for Use With Administration/Settlement
Service Providers or such other form of confidentiality undertaking agreed
between the Borrower and the relevant Finance
Party;
|
|
(d)
|
to
any rating agency (including its professional advisers) such Confidential
Information as may be required to be disclosed to enable such rating
agency to carry out its normal rating activities in relation to the
Finance Documents and/or the Obligors if the rating agency to whom the
Confidential Information is to be given is informed of its confidential
nature and that some or all of such Confidential Information may be
price-sensitive information.
|
39.3
|
Disclosure
to numbering service providers
|
|
(a)
|
Any
Finance Party may disclose to any national or international numbering
service provider appointed by that Finance Party to provide identification
numbering services in respect of this Agreement, the Facility and/or one
or more Obligors the following
information:
|
|
(i)
|
names
of Obligors;
|
|
(ii)
|
country
of domicile of Obligors;
|
|
(iii)
|
place
of incorporation of Obligors;
|
|
(iv)
|
date
of this Agreement;
|
|
(v)
|
the
names of the Facility Agent and the
Arranger;
|
|
(vi)
|
date
of each amendment and restatement of this
Agreement;
|
|
(vii)
|
amount
of the Total Commitments;
|
|
(viii)
|
currency
of the Facility;
|
|
(ix)
|
type
of the Facility;
|
|
(x)
|
ranking
of the Facility;
|
|
(xi)
|
the
Termination Date;
|
|
(xii)
|
changes
to any of the information previously supplied pursuant to
paragraphs (i) to (xi) above;
and
|
|
(xiii)
|
such
other information agreed between such Finance Party and the
Borrower,
|
|
(b)
|
The
Parties acknowledge and agree that each identification number assigned to
this Agreement, the Facility and/or one or more Obligors by a numbering
service provider and the information associated with each such number may
be disclosed to users of its services in accordance with the standard
terms and conditions of that numbering service
provider.
|
|
(c)
|
Each
Obligor represents that none of the information set out in
paragraphs (i) to (xiii) of paragraph (a) above is, nor will at
any time be, unpublished price-sensitive
information.
|
|
(d)
|
The
Facility Agent shall notify the Borrower and the other Finance Parties
of:
|
|
(i)
|
the
name of any numbering service provider appointed by the Facility Agent in
respect of this Agreement, the Facility and/or one or more Obligors;
and
|
|
(ii)
|
the
number or, as the case may be, numbers assigned to this Agreement, the
Facility and/or one or more Obligors by such numbering service
provider.
|
39.4
|
Entire
agreement
|
39.5
|
Inside
information
|
39.6
|
Notification
of disclosure
|
|
(a)
|
of
the circumstances of any disclosure of Confidential Information made
pursuant to paragraph (b)(v) of Clause 39.2 (
Disclosure of Confidential
Information
) except where such disclosure is made to any of the
persons referred to in that paragraph during the ordinary course of
its supervisory or regulatory function;
and
|
|
(b)
|
upon
becoming aware that Confidential Information has been disclosed in breach
of this Clause 39 (
Confidentiality
).
|
39.7
|
Continuing
obligations
|
|
(a)
|
the
date on which all amounts payable by the Obligors under or in connection
with the Finance Documents have been paid in full and all Commitments have
been cancelled or otherwise cease to be available;
and
|
|
(b)
|
the
date on which such Finance Party otherwise ceases to be a Finance
Party.
|
40.
|
COUNTERPARTS
|
41.
|
GOVERNING
LAW
|
42.
|
ENFORCEMENT
|
42.1
|
Jurisdiction
of English courts
|
|
(a)
|
The
courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a dispute
relating to any non-contractual matters and/or the existence, validity or
termination of this Agreement) (a “
Dispute
”).
|
|
(b)
|
The
Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue
to the contrary.
|
|
(c)
|
This
Clause 42 is for the benefit of the Finance Parties and Secured
Parties only. As a result, no Finance Party or Secured Party
shall be prevented from taking proceedings relating to a Dispute in any
other courts with jurisdiction. To the extent allowed by law,
the Finance Parties and Secured Parties may take concurrent proceedings in
any number of jurisdictions.
|
42.2
|
Service
of process
|
|
(a)
|
Without
prejudice to any other mode of service allowed under any relevant law,
each Obligor (other than an Obligor incorporated in England and
Wales):
|
|
(i)
|
irrevocably
appoints CME Development Corporation with its registered branch at 52
Charles Street, London W1J 5EU, as its agent for service of process in
relation to any proceedings before the English courts in connection with
any Finance Document; and
|
|
(ii)
|
agrees
that failure by an agent for service of process to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
|
|
(b)
|
If
any person appointed as an agent for service of process is unable for any
reason to act as agent for service of process, the Borrower (on behalf of
all the Obligors) must immediately (and in any event within ten
(10) days of such event taking place) appoint another agent on terms
acceptable to the Facility Agent. Failing this, the Facility
Agent may appoint another agent for this
purpose.
|
Name
of Borrower
|
Registration
number (or equivalent, if any) Jurisdiction of
Incorporation
|
|
CET
21 spol.s r.o.
|
45800456
Czech
Republic
|
|
Name
of Original Guarantor
|
Registration
number (or equivalent, if any) Jurisdiction of
Incorporation
|
|
Central
European Media Enterprises Ltd.
|
19574
Bermuda
|
|
CME
Media Enterprises B.V.
|
33246826
The
Netherlands
|
|
CME
Romania B.V.
|
33289326
The
Netherlands
|
|
CME
Slovak Holdings B.V.
|
34274606
The
Netherlands
|
|
MARKÍZA
- SLOVAKIA, spol. s r.o.
|
31
444 873
Slovak
Republic
|
Name
of Original Lender
|
Commitment
|
|
Č
eská
spo
ř
itelna,
a.s.
|
1,600,000,000
or,
following the Increase Date
applicable to Česká
spořitelna, a.s.
(if any):
the
amount set forth in the Increase Confirmation delivered to
the Facility Agent
by Česká spořitelna, a.s.
|
|
UniCredit
Bank Czech Republic, a.s.
|
500,000,000
or,
following the Increase Date applicable to UniCredit Bank Czech Republic,
a.s. (if any):
the
amount set forth in the Increase Confirmation delivered to the Facility
Agent by UniCredit Bank Czech Republic, a.s.
|
|
BNP
Paribas
|
400,000,000
or,
following the Increase Date applicable to BNP Paribas (if
any):
the
amount set forth in the Increase Confirmation delivered to the Facility
Agent by BNP Paribas
|
1.
|
Obligors
|
|
(a)
|
A
copy of the constitutional documents of each Original
Obligor.
|
|
(b)
|
A
copy of the resolutions of the general meeting of the Borrower approving
the terms of, and the transactions contemplated by, the Finance Documents
to which it is a party and resolving that it execute, deliver and perform
the Finance Documents to which it is a
party.
|
|
(c)
|
A
copy of the resolution of executives of the
Borrower
|
|
(i)
|
approving
the terms of, and the transactions contemplated by, the Finance Documents
to which it is a party and resolving that it execute, deliver and perform
the Finance Documents to which it is a
party;
|
|
(ii)
|
authorising
a specified person or persons to execute the Finance Documents to which it
is a party on its behalf;
|
|
(iii)
|
authorising
a specified person or persons, on its behalf, to sign and/or despatch all
documents and notices (including, if relevant, any Utilisation Request and
Extension Request) to be signed and/or despatched by it under or in
connection with the Finance Documents to which it is a
party.
|
|
(d)
|
A
copy of a resolution of the board of each Original Obligor other than the
Borrower or in case of Markiza, a copy of a resolution of majority of the
executive directors (
konatelia
) of
Markiza:
|
|
(i)
|
approving
the terms of, and the transactions contemplated by, the Finance Documents
to which it is a party and resolving that it execute, deliver and perform
the Finance Documents to which it is a party;
and
|
|
(ii)
|
authorising
a specified person or persons to execute the Finance Documents to which it
is a party on its behalf.
|
|
(e)
|
A
specimen of the signature of each person authorised by the resolutions
referred to in paragraph (c) and (d) above in relation to the Finance
Documents and related documents.
|
|
(f)
|
A
copy of a resolution signed by all the holders of the issued shares in
each of CME Media Enterprises B.V., CME Romania B.V., CME Slovak Holdings
B.V. and Markiza, approving the terms of, and the transactions
contemplated by, the Finance Documents to which the Original Guarantor is
a party.
|
|
(g)
|
A
certificate of each Original Obligor (signed by its respective authorised
signatories) confirming that borrowing or guaranteeing or securing, as
appropriate, the Total Commitments would not cause any borrowing,
guarantee, security or similar limit binding on it to be exceeded
(including, without limitation, any limit, restriction or covenant set out
in any Parent Note Document or any Parent Note
Instrument).
|
|
(h)
|
A
certificate of an authorised signatory of the Borrower or other relevant
Original Obligor certifying that each copy document relating to it
specified in Clauses 1(a) through 1(d), Clause 1(f), Clauses 4(b) through
(j) of this Part I of Schedule 2 is correct, complete and in full
force and effect and has not been amended or superseded as at a date no
earlier than the date of this
Agreement.
|
2.
|
Finance
Documents
|
|
(a)
|
This
Agreement executed by the Obligors.
|
|
(b)
|
The
Fee Letters executed by the
Borrower.
|
|
(c)
|
The
Hedging Letter in agreed form and executed by the
Borrower.
|
|
(d)
|
At
least one original of the following Transaction Security Documents
executed by the relevant Obligors specified below opposite the relevant
Transaction Security Document:
|
Name
of relevant Obligor
|
Transaction
Security Document
|
|
The
Borrower
|
First
ranking share pledge/charge/mortgage over all existing and further issued
shares of CME Slovak Holdings B.V.
|
|
CME
Romania B.V.
|
English
law assignment of the loan provided under the CET Loan
Agreement
|
3.
|
Legal
opinions
|
|
(a)
|
A
legal opinion of White & Case LLP, legal advisers to the Facility
Agent and the Arranger as to English law substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
|
|
(b)
|
A
legal opinion of the following legal advisers to the Facility Agent and
Arranger:
|
|
(i)
|
White
& Case, advokátní kancelář, as to Czech law;
|
|
(ii)
|
White
& Case s.r.o., as to Slovak law;
and
|
|
(iii)
|
Nauta
Dutilh N.V., as to Dutch law.
|
|
(c)
|
A
capacity legal opinion of the following legal advisers to the
Obligors:
|
|
(i)
|
Kotrlik
Bourgeault Andrusko, legal advisers to the Borrower as to Czech
law;
|
|
(ii)
|
Allen
& Overy Bratislava, s.r.o., legal advisers to Markiza as to Slovak
law;
|
|
(iii)
|
Loyens
& Loeff, legal advisers to the Obligors incorporated in the
Netherlands as to Dutch law; and
|
|
(iv)
|
Conyers
Dill Pearman, legal advisers to the Parent as to Bermuda
law.
|
4.
|
Other documents and
evidence
|
|
(a)
|
Evidence
that any process agent referred to in Clause 42.2 (
Service of process
) and
in the English law assignment of the loan provided under the CET Loan
Agreement referred to in Clause 2 above has accepted its
appointment.
|
|
(b)
|
A
copy, certified by an authorised signatory of the Borrower to be a true
copy, of the CET Loan Agreement.
|
|
(c)
|
A
copy, certified by an authorised signatory of the CME Romania B.V. to be a
true copy, of the Markiza Loan
Agreement.
|
|
(d)
|
A
copy, certified by an authorised signatory of the Parent to be a true
copy, of each Parent Note Document.
|
|
(e)
|
A
certificate signed by an authorised signatory of the Parent certifying
that the Parent Note Documents are in full force and
effect.
|
|
(f)
|
A
copy of the Valuation Report.
|
|
(g)
|
A
copy, certified by an authorised signatory of the Parent or relevant Key
Obligor, as applicable, to be a true copy, of the Original Financial
Statements of the Parent and each Key
Obligor.
|
|
(h)
|
A
copy of the Broadcasting Licences.
|
|
(i)
|
The
Borrower’s Business Plan.
|
|
(j)
|
The
Parent Group Business Plan.
|
5.
|
Insurance
|
6.
|
Other documents and
evidence
|
1.
|
An
Accession Deed executed by the Additional Obligor and the
Parent.
|
2.
|
A
copy of the constitutional documents of the Additional
Obligor.
|
3.
|
A
copy of a resolution of the board (or, in the case of a Slovak Additional
Obligor, where there is no board of directors, of majority of its
statutory executives) of the Additional
Obligor:
|
|
(a)
|
approving
the terms of, and the transactions contemplated by, the Accession Deed and
the Finance Documents and resolving that it execute, deliver and perform
the Accession Deed and any other Finance Document to which it is
party;
|
|
(b)
|
authorising
a specified person or persons to execute the Accession Deed and other
Finance Documents on its behalf;
|
|
(c)
|
authorising
a specified person or persons, on its behalf, to sign and/or despatch all
other documents and notices to be signed and/or despatched by it under or
in connection with the Finance Documents to which it is a party;
and
|
|
(d)
|
authorising
the Borrower to act as its agent in connection with the Finance
Documents
|
4.
|
A
specimen of the signature of each person authorised by the resolution
referred to in paragraph 3
above.
|
5.
|
A
copy of a resolution signed by all the holders of the issued shares of the
Additional Guarantor, approving the terms of, and the transactions
contemplated by, the Finance Documents to which the Additional Guarantor
is a party, if applicable.
|
6.
|
A
certificate of the Additional Obligor (signed by a director) confirming
that borrowing or guaranteeing or securing, as appropriate, the Total
Commitments would not cause any borrowing, guarantee, security or similar
limit binding on it to be exceeded.
|
7.
|
A
certificate of an authorised signatory of the Additional Obligor
certifying that each copy document listed in this Part II of Schedule 2 is
correct, complete and in full force and effect and has not been amended or
superseded as at a date no earlier than the date of the Accession
Deed.
|
8.
|
A
copy of any other authorisation, consent, approval, resolution, licence,
exemption, filing, notarisation or registration or other document, opinion
or assurance which the Facility Agent considers to be necessary in
connection with the entry into and performance of the transactions
contemplated by the Accession Letter or for the validity and
enforceability of any Finance
Document.
|
9.
|
If
available, the latest audited financial statements of the Additional
Obligor.
|
10.
|
The
following legal opinions, each addressed to the Facility Agent, the
Security Agent and the Lenders:
|
|
(a)
|
A
legal opinion of the legal advisers to the Facility Agent in England, as
to English law in the form distributed to the Lenders prior to signing the
Accession Deed.
|
|
(b)
|
If
the Additional Obligor is incorporated in or has its “centre of main
interest” or “establishment” (as referred to in Clause 21.24 (
Centre of main interests and
establishments
)) in a jurisdiction other than England and Wales or
is executing a Finance Document which is governed by a law other than
English law, a legal opinion of the legal advisers to the Facility Agent
in the jurisdiction of its incorporation, “centre of main interest” or
“establishment” (as applicable) or, as the case may be, the jurisdiction
of the governing law of that Finance Document (the “
Applicable
Jurisdiction
”) as to the law of the Applicable Jurisdiction and in
the form distributed to the Lenders prior to signing the Accession
Deed.
|
11.
|
If
the proposed Additional Obligor is incorporated in a jurisdiction other
than England and Wales, evidence that the process agent specified in
Clause 42.2 (
Service of
process
), if not an Obligor, has accepted its appointment in
relation to the proposed Additional
Obligor.
|
12.
|
Any
security documents which are required by the Facility Agent to be executed
by the proposed Additional Obligor.
|
13.
|
Any
notices or documents required to be given or executed under the terms of
those security documents.
|
14.
|
(a)
|
If
the Additional Obligor is incorporated in England and Wales or Scotland,
evidence that the Additional Obligor has done all that is necessary
(including, without limitation, by re-registering as a private company) to
comply with sections 677 to 683 of the Companies Act 2006 in order to
enable that Additional Obligor to enter into the Finance Documents and
perform its obligations under the Finance
Documents.
|
|
(b)
|
If
the Additional Obligor is not incorporated in England and Wales or
Scotland, such documentary evidence as legal counsel to the Facility Agent
may require, that such Additional Obligor has complied with any law in its
jurisdiction relating to financial assistance or analogous
process.
|
From:
|
CET
21 spol.s r.o.
|
To:
|
[
Facility
Agent
]
|
1.
|
We
refer to the Facility Agreement. This is a Utilisation
Request. Terms defined in the Facility Agreement have the same
meaning in this Utilisation Request unless given a different meaning in
this Utilisation Request.
|
2.
|
We
wish to borrow a Loan on the following
terms:
|
|
(a)
|
Borrower:
|
[●]
|
|
(b)
|
Proposed
Utilisation Date:
|
[●]
(or, if that is not a Business Day, the next Business
Day)
|
|
(c)
|
Currency
of Loan:
|
CZK
|
|
(d)
|
Amount:
|
[●]
or, if less, the Available Facility
|
3.
|
We
confirm that each condition specified in Clause 4.2 (
Further conditions
precedent
) is satisfied on the date of this Utilisation
Request.
|
4.
|
The
proceeds of this Loan should be credited to [
account
].
|
5.
|
This
Utilisation Request is irrevocable.
|
1.
|
The
Mandatory Cost is an addition to the interest rate to compensate Lenders
for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central
Bank.
|
2.
|
On
the first day of each Interest Period (or as soon as possible thereafter)
the Facility Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Lender, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by the
Facility Agent as a weighted average of the Lenders' Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender in
the relevant Loan) and will be expressed as a percentage rate per
annum.
|
3.
|
The
Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the Facility Agent. This percentage will be certified by
that Lender in its notice to the Facility Agent to be its reasonable
determination of the cost (expressed as a percentage of that Lender's
participation in all Loans made from that Facility Office) of complying
with the minimum reserve requirements of the European Central Bank in
respect of loans made from that Facility
Office.
|
4.
|
The
Additional Cost Rate for any Lender lending from a Facility Office in the
United Kingdom will be calculated by the Facility Agent as
follows:
|
|
(a)
|
in
relation to a sterling Loan:
|
|
per
cent. per annum
|
|
(b)
|
in
relation to a Loan in any currency other than
sterling:
|
|
per
cent. per annum.
|
|
A
|
is
the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which that Lender is from time to time required to
maintain as an interest free cash ratio deposit with the Bank of England
to comply with cash ratio
requirements.
|
|
B
|
is
the percentage rate of interest (excluding the Margin and the Mandatory
Cost and, if the Loan is an Unpaid Sum, the additional rate of interest
specified in paragraph (a) of Clause 11.3 (
Default interest
)
payable for the relevant Interest Period on the
Loan.
|
|
C
|
is
the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
|
|
D
|
is
the percentage rate per annum payable by the Bank of England to the
Facility Agent on interest bearing Special
Deposits.
|
|
E
|
is
designed to compensate Lenders for amounts payable under the Fees Rules
and is calculated by the Facility Agent as being the average of the most
recent rates of charge supplied by the Reference Banks to the Facility
Agent pursuant to paragraph 7 below and expressed in pounds per
£1,000,000.
|
5.
|
For
the purposes of this Schedule:
|
|
(a)
|
“
Eligible Liabilities
”
and “
Special
Deposits
” have the meanings given to them from time to time under
or pursuant to the Bank of England Act 1998 or (as may be appropriate) by
the Bank of England;
|
|
(b)
|
“
Fees Rules
” means the
rules on periodic fees contained in the Financial Services Authority Fees
Manual or such other law or regulation as may be in force from time to
time in respect of the payment of fees for the acceptance of
deposits;
|
|
(c)
|
“
Fee Tariffs
” means the
fee tariffs specified in the Fees Rules under the activity group A.1
Deposit acceptors (ignoring any minimum fee or zero rated fee required
pursuant to the Fees Rules but taking into account any applicable discount
rate); and
|
|
(d)
|
“
Tariff Base
” has the
meaning given to it in, and will be calculated in accordance with, the
Fees Rules.
|
6.
|
In
application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula
as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting
figures shall be rounded to four decimal
places.
|
7.
|
If
requested by the Facility Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply
to the Facility Agent, the rate of charge payable by that Reference Bank
to the Financial Services Authority pursuant to the Fees Rules in respect
of the relevant financial year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the average
of the Fee Tariffs applicable to that Reference Bank for that financial
year) and expressed in pounds per £1,000,000 of the Tariff Base of that
Reference Bank.
|
8.
|
Each
Lender shall supply any information required by the Facility Agent for the
purpose of calculating its Additional Cost Rate. In particular,
but without limitation, each Lender shall supply the following information
on or prior to the date on which it becomes a
Lender:
|
|
(a)
|
the
jurisdiction of its Facility Office;
and
|
|
(b)
|
any
other information that the Facility Agent may reasonably require for such
purpose.
|
9.
|
The
percentages of each Lender for the purpose of A and C above and the rates
of charge of each Reference Bank for the purpose of E above shall be
determined by the Facility Agent based upon the information supplied to it
pursuant to paragraphs 7 and 8 above and on the assumption that, unless a
Lender notifies the Facility Agent to the contrary, each Lender's
obligations in relation to cash ratio deposits and Special Deposits are
the same as those of a typical bank from its jurisdiction of incorporation
with a Facility Office in the same jurisdiction as its Facility
Office.
|
10.
|
The
Facility Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is
true and correct in all respects.
|
11.
|
The
Facility Agent shall distribute the additional amounts received as a
result of the Mandatory Cost to the Lenders on the basis of the Additional
Cost Rate for each Lender based on the information provided by each Lender
and each Reference Bank pursuant to paragraphs 3, 7 and 8
above.
|
12.
|
Any
determination by the Facility Agent pursuant to this Schedule in relation
to a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be conclusive
and binding on all Parties.
|
13.
|
The
Facility Agent may from time to time, after consultation with the Borrower
and the Lenders, determine and notify to all Parties any amendments which
are required to be made to this Schedule in order to comply with any
change in law, regulation or any requirements from time to time imposed by
the Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or
any of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all
Parties.
|
To:
|
[●]
as Facility Agent
|
From:
|
[
The Existing Lender
]
(the “
Existing
Lender
”) and [
The
New Lender
] (the “
New
Lender
”)
|
1.
|
We
refer to the Facility Agreement. This agreement (the “
Agreement
”) shall take
effect as a Transfer Certificate for the purpose of the Facility
Agreement. Terms defined in the Facility Agreement have the
same meaning in this Agreement unless given a different meaning in this
Agreement.
|
2.
|
We
refer to Clause 26.5 (
Procedure for transfer
)
of the Facility Agreement:
|
|
(a)
|
The
Existing Lender and the New Lender agree to the Existing Lender
transferring to the New Lender by novation all or part of the Existing
Lender’s Commitment, rights and obligations referred to in the Schedule in
accordance with Clause 26.5 (
Procedure for
transfer
).
|
|
(b)
|
The
proposed Transfer Date is [●].
|
|
(c)
|
The
Facility Office and address, fax number and attention details for notices
of the New Lender for the purposes of Clause 34.2 (
Addresses
) are set out
in the Schedule.
|
3.
|
The
New Lender expressly acknowledges the limitations on the Existing Lender’s
obligations set out in paragraph (c) of Clause 26.4 (
Limitation of responsibility
of Existing Lenders
).
|
4.
|
The
New Lender confirms, for the benefit of the Facility Agent and without
liability to any Obligor, that it
is:
|
|
(a)
|
[a
Qualifying Lender (other than a Treaty
Lender);]
|
|
(b)
|
[a
Treaty Lender;]
|
|
(c)
|
[not
a Qualifying Lender].
|
5.
|
This
Agreement 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 Agreement.
|
6.
|
This
Agreement (and any non-contractual matters arising in connection with this
Agreement) is governed by English
law.
|
8.
|
This
Agreement has been entered into on the date stated at the beginning of
this Agreement.
|
[Existing
Lender]
|
[New
Lender]
|
|
By:
|
By:
|
To:
|
[●]
as Facility Agent and [●], [●] as Borrower, for and on behalf of each
Obligor
|
From:
|
[the
Existing Lender
]
(the “
Existing
Lender
”) and [the
New Lender
] (the “
New
Lender
”)
|
1.
|
We
refer to the Facility Agreement. This is an Assignment
Agreement. This agreement (the “
Agreement
”) shall take
effect as an Assignment Agreement for the purpose of the Facility
Agreement. Terms defined in the Facility Agreement have the
same meaning in this Agreement unless given a different meaning in this
Agreement.
|
2.
|
We
refer to Clause 26.6 (
Procedure for
assignment
) of the Facility
Agreement:
|
|
(a)
|
The
Existing Lender assigns absolutely to the New Lender all the rights of the
Existing Lender under the Facility Agreement, the other Finance Documents
and in respect of the Transaction Security which correspond to that
portion of the Existing Lender’s Commitments and participations in Loans
under the Facility Agreement as specified in the
Schedule.
|
|
(b)
|
The
Existing Lender is released from all the obligations of the Existing
Lender which correspond to that portion of the Existing Lender’s
Commitments and participations in Loans under the Facility Agreement
specified in the Schedule.
|
|
(c)
|
The
New Lender becomes a Party as a Lender and is bound by obligations
equivalent to those from which the Existing Lender is released under
paragraph (b) above.
|
3.
|
The
proposed Transfer Date is [●].
|
4.
|
On
the Transfer Date the New Lender becomes Party to the relevant Finance
Documents as a Lender.
|
5.
|
The
Facility Office and address, fax number and attention details for notices
of the New Lender for the purposes of Clause 34.2 (
Addresses
) are set out
in the Schedule.
|
6.
|
The
New Lender expressly acknowledges the limitations on the Existing Lender’s
obligations set out in paragraph (c) of Clause 26.4 (
Limitation of responsibility
of Existing Lenders
).
|
7.
|
The
New Lender confirms, for the benefit of the Facility Agent and without
liability to any Obligor, that it
is:
|
|
(a)
|
[a
Qualifying Lender (other than a Treaty
Lender);]
|
|
(b)
|
[a
Treaty Lender;]
|
|
(c)
|
[not
a Qualifying Lender].
|
8.
|
This
Agreement acts as notice to the Facility Agent (on behalf of each Finance
Party) and, upon delivery in accordance with Clause 26.7 (Copy of
Transfer Certificate or Assignment Agreement), to the Borrower (on behalf
of each Obligor) of the assignment referred to in this
Agreement.
|
9.
|
This
Agreement 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 Agreement.
|
10.
|
This
Agreement (and any non-contractual matters arising in connection with this
Agreement) is governed by English
law.
|
11.
|
This
Agreement has been entered into on the date stated at the beginning of
this Agreement.
|
[Existing
Lender]
|
[New
Lender]
|
|
By:
|
By:
|
To:
|
[●]
as Facility Agent
|
From:
|
[[
Subsidiary
] and [
Parent
]]/[[
Additional Lender
] and
[
Borrower
]]
|
1.
|
We
refer to the Facility Agreement. This deed (the “
Accession Deed
”) shall
take effect as an Accession Deed for the purposes of the Facility
Agreement. Terms defined in the Facility Agreement have the
same meaning in paragraphs 1-3 of this Accession Deed unless given a
different meaning in this Accession
Deed.
|
2.
|
[[
Subsidiary
] agrees to
become an Additional Guarantor on and from the date of this Accession Deed
and to be bound on and from the date of this Accession Deed by the terms
of the Facility Agreement and the other Finance Documents as an Additional
Guarantor pursuant to Clause 28.2 (
Additional Guarantors
)
of the Facility Agreement. [
Subsidiary
] is a
company duly incorporated under the laws of [
name of relevant
jurisdiction
] and is a limited liability company and registered
number [●].]
|
3.
|
[
Subsidiary’s
]/[
Additional
Lender’s
]
administrative
details for the purposes of the Facility Agreement are as
follows:
|
4.
|
This
Accession Deed (and any non-contractual matters arising in connection with
this Agreement) is governed by English
law.
|
[EXECUTED
AS A DEED
|
)
|
By: [
Subsidiary
][
Additional
Lender
]
|
)
|
____________________________
|
Director
|
____________________________
|
Director/Secretary
|
[EXECUTED
AS A DEED
|
)
|
|
By: [
Subsidiary
]
|
____________________________
|
Signature
of Director
|
____________________________
|
Name
of Director
|
____________________________
|
Signature
of witness
|
____________________________
|
Name
of witness
|
____________________________
|
Address
of witness
|
____________________________
|
____________________________
|
____________________________
|
____________________________
|
Occupation
of witness]
|
____________________________
|
[
Parent
][
Borrower
]
|
To:
|
[●]
as Facility Agent
|
From:
|
CET
21 spol.s r.o.
|
1.
|
We
refer to the Facility Agreement. This is a Compliance
Certificate. Terms defined in the Facility Agreement have the
same meaning when used in this Compliance Certificate unless given a
different meaning in this Compliance
Certificate.
|
2.
|
We
confirm that:
|
|
(a)
|
Cashflow
Cover is [●].
|
3.
|
We
confirm that no Default is
continuing.*
|
Signed
|
…………………..
|
……………………..
|
||
Executive
of CET 21 spol.s r.o.
|
Executive
of CET 21 spol.s r.o
|
*
|
If
this statement cannot be made, the certificate should identify any Default
that is continuing and the steps, if any, being taken to remedy
it.
|
|
[insert
name of Lender/potential Lender]
|
Borrower
: CET
21, spol. s r.o.
Amount
: CZK
2,500,000,000
Agent:
Česká spořitelna, a.s.
|
1.
|
Confidentiality
Undertaking
. You
undertake:
|
|
1.
|
To
keep the Confidential Information confidential and not to disclose it to
anyone except as provided for by paragraph 2 below and to ensure that
the Confidential Information is protected with security measures and a
degree of care that would apply to your own confidential
information;
|
|
2.
|
to
keep confidential and not disclose to anyone the fact that the
Confidential Information has been made available or that discussions or
negotiations are taking place or have taken place between us in connection
with the Facility;
|
|
3.
|
to
use the Confidential Information only for the Permitted
Purpose;
|
|
4.
|
to
use all reasonable endeavours to ensure that any person to whom you pass
any Confidential Information (unless disclosed under paragraph 2
below) acknowledges and complies with the provisions of this letter as if
that person were also a party to it;
and
|
|
5.
|
save
as where otherwise permitted under the Agreement, not to make enquiries of
any member of the Group or any of their officers, directors, employees or
professional advisers relating directly or indirectly to the
Facility.
|
2.
|
Permitted
Disclosure
. We agree that you may disclose Confidential
Information:
|
|
1.
|
to
any of your Affiliates and their officers, directors, employees and
professional advisers to the extent necessary for the Permitted Purpose
and to any auditors of you and your
Affiliates;
|
|
2.
|
(i) where
requested or required by any court of competent jurisdiction or any
competent judicial, governmental, supervisory or regulatory body,
(ii) where required by the rules of any stock exchange on which the
shares or other securities of you and/or your Affiliates are listed or
(iii) where required by the laws or regulations of any country with
jurisdiction over the affairs of you and/or your Affiliates;
or
|
|
3.
|
with
the prior written consent of us and the
Borrower.
|
3.
|
Notification of Required or
Unauthorised Disclosure
.
You agree (to the
extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraph 2 or upon becoming aware that Confidential
Information has been disclosed in breach of this
letter.
|
4.
|
Return of
Copies
. If we so request in writing, you shall return
all Confidential Information supplied to you by us and destroy or
permanently erase all copies of Confidential Information made by you and
use all reasonable endeavours to ensure that anyone to whom you have
supplied any Confidential Information destroys or permanently erases such
Confidential Information and any copies made by them, in each case save to
the extent that you or the recipients are required to retain any such
Confidential Information by any applicable law, rule or regulation or by
any competent judicial, governmental, supervisory or regulatory body or in
accordance with internal policy, or where the Confidential Information has
been disclosed under paragraph 2
above.
|
5.
|
Continuing
Obligations
. The obligations in this letter are
continuing and, in particular, shall survive the termination of any
discussions or negotiations between you and us. Notwithstanding
the previous sentence, the obligations in this letter [which have been
entered into by you in connection with your proposed acquisition of an
interest by way of assignment/transfer/sub-participation shall cease if
you become a party to or otherwise acquire (by assignment, transfer or sub
participation) an interest, direct or indirect in the Facility or] twelve
months after you have returned all Confidential Information supplied to
you by us and destroyed or permanently erased all copies of Confidential
Information made by you (other than any such Confidential Information or
copies which have been disclosed under paragraph 2 above (other than
sub-paragraph 2.1) or which, pursuant to paragraph 4 above, are not
required to be returned or
destroyed).
|
6.
|
No
Representation
; Consequences of Breach,
etc
. You acknowledge and agree
that:
|
|
1.
|
neither
we nor any of our officers, employees or advisers (i) make any
representation or warranty, express or implied, as to, or assume any
responsibility for, the accuracy, reliability or completeness of any of
the Confidential Information or any other information supplied by us or
any member of the Group or the assumptions on which it is based or
(ii) shall be under any obligation to update or correct any
inaccuracy in the Confidential Information or any other information
supplied by us or any member of the Group or be otherwise liable to you or
any other person in respect to the Confidential Information or any such
information; and
|
|
2.
|
we
or members of the Group may be irreparably harmed by the breach of the
terms of this letter and damages may not be an adequate remedy; each of
our officers, employees or advisors or member of the Group may be granted
an injunction or specific performance for any threatened or actual breach
of the provisions of this letter by
you.
|
7.
|
No Waiver; Amendments,
etc
. This letter sets out the full extent of your
obligations of confidentiality owed to us in relation to the information
the subject of this letter. No failure or delay in exercising
any right, power or privilege under this letter will operate as a waiver
thereof nor will any single or partial exercise of any right, power or
privilege preclude any further exercise thereof or the exercise of any
other right, power or privileges under this letter. The terms
of this letter and your obligations under this letter may only be amended
or modified by written agreement between
us.
|
8.
|
Inside
Information
. You acknowledge that some or all of the
Confidential Information is or may be price-sensitive information and that
the use of such information may be regulated or prohibited by applicable
legislation relating to insider dealing and you undertake not to use any
Confidential Information for any unlawful
purpose.
|
9.
|
Nature of
Undertakings
. The undertakings given by you under this
letter are given to us and (without
implying
any fiduciary
obligations on our part) are also given for the benefit of the Borrower
and each other member of the Group.
|
10.
|
Third party rights
.
Subject to
paragraph 6 and paragraph 9 the terms of this letter may be
enforced and relied upon only by you and us and the operation of the
Contracts (Rights of Third Parties) Act 1999 is
excluded.
|
11.
|
Governing
Law and
Jurisdiction
. This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed by and
construed in accordance with the laws of England and the parties submit to
the non-exclusive jurisdiction of the English
courts.
|
12.
|
Definitions
. In
this letter (including the acknowledgement set out
below):
|
To:
|
[Lender]
|
Delivery
of a duly completed Utilisation Request (Clause 5.1 (
Delivery of a Utilisation
Request
))
|
U-3
9.30 am
|
|
PRIBOR
is fixed
|
Quotation
Day as of 11:00 a.m.
|
“U”
|
=
|
date
of utilisation of a Loan
|
“U
- X”
|
=
|
X
Business Days prior to date of utilisation of a
Loan
|
1.
|
RIGHTS,
DUTIES, POWERS, DISCRETIONS AND REMUNERATION OF THE SECURITY
AGENT
|
(a)
|
The
Security Agent shall have such rights, powers, authorities and discretions
as are conferred on it by this Agreement and the Transaction Security
Documents together with such rights, powers, authorities and discretions
as are reasonably incidental thereto. The Security Agent shall
not be under any obligations other than those which are specifically
provided for in this Agreement and/or any relevant Finance
Document.
|
(b)
|
The
Security Agent may, in its absolute discretion refrain from taking any (or
any further) action or exercising any right, power, authority or
discretion under or in respect of this Agreement or any Transaction
Security Document until it has received instructions from the Facility
Agent as to whether (and/or the way in which) such action, right, power,
authority or discretion is to be taken or
exercised.
|
(c)
|
The
Security Agent shall not be required to take any action in accordance with
any instructions from the Facility Agent and/or the Majority Lenders (as
the case may be) in respect of this Agreement or any of the Transaction
Security Documents unless it has been indemnified and/or secured to its
satisfaction (in its absolute discretion) whether by way of payment in
advance or otherwise, against all actions, proceedings, claims and demands
to which it may render itself liable and all costs, charges, damages,
expenses and liabilities which it may incur by so
doing.
|
(d)
|
The
Security Agent shall be entitled to such remuneration as it may from time
to time agree with the Borrower and have approved by the Facility
Agent. The Security Agent shall not by virtue of receiving any
such remuneration or other payment be deprived of any rights, powers,
privileges or immunities which a gratuitous trustee would have had in
relation to this Agreement or any of the Transaction Security
Documents.
|
(e)
|
The
Security Agent may, in the absence of any instructions to the contrary
and/or any relevant contrary requirement contained in this Agreement, act
or refrain from acting with respect to the exercise of any of its duties
under this Agreement and/or any other Finance Document which in its
absolute discretion it considers to be for the protection and benefit of
all the Secured Parties.
|
(f)
|
Notwithstanding
the provisions of paragraph 1(b) above, at any time after receipt by the
Security Agent of notice from the Facility Agent informing the Security
Agent that any Transaction Security has become enforceable and directing
the Security Agent to exercise all or any of its rights, remedies, powers
or discretions under any of this Agreement, any Transaction Security
Document and/or any other Finance Document, the Security Agent may take or
refrain from taking such action as in its sole discretion it thinks fit to
enforce the Transaction Security.
|
(g)
|
Each
Secured Party irrevocably authorises the Security Agent to exercise the
rights and powers and discretions specifically given to the Security Agent
under or in connection with the Finance Documents together with any other
incidental rights, powers, authorities or
discretions.
|
(h)
|
The
Security Agent may if it receives any instructions or directions from
Agent or the Majority Lenders (as applicable) to take any action in
relation to any Transaction Security, assume that all applicable
conditions under the Transaction Security Documents for taking that action
have been satisfied.
|
(i)
|
Notwithstanding
anything to the contrary expressed or implied in any Finance Document the
Security Agent shall not:
|
|
(i)
|
be
obliged to make any enquiry as to any default by any Obligor in the
performance or observance of any provision of any of the Transaction
Security Documents or as to whether any event or circumstance has occurred
as a result of which any Transaction Security shall have or may become
enforceable;
|
|
(ii)
|
be
bound to account to any other Secured Party for any sum or the profit
element of any sum received by it for its own
account;
|
|
(iii)
|
be
liable to any of the Secured Parties for any action taken or omitted under
or in connection with any of the Transaction Security Documents unless
caused by its fraud, gross negligence or wilful
misconduct;
|
|
(iv)
|
have
or be deemed to have any duty, obligation or responsibility to, or
relationship of trust or agency with, any Obligor;
or
|
|
(v)
|
be
obliged to take any action in relation to enforcing or perfecting any
Security over any shares in a company registered or incorporated with
unlimited liability.
|
(j)
|
Unless
caused directly by its fraud or wilful misconduct, the Security Agent
shall not accept responsibility or be liable
for:
|
|
(i)
|
any
losses to any person or any liability arising as a result of taking or
refraining from taking any action in relation to any of the Transaction
Security Documents or any Transaction Security or otherwise, whether in
accordance with instructions from the Secured Parties or
otherwise;
|
|
(ii)
|
the
exercise of, or the failure to exercise, any judgment, discretion or power
given to it by or in connection with any of the Transaction Security
Documents, any Transaction Security or any other agreement, arrangement or
document entered into, made or executed in anticipation of, pursuant to or
in connection therewith; or
|
|
(iii)
|
any
shortfall which arises on the enforcement of any Transaction
Security,
|
(k)
|
The
Security Agent shall not be liable for any failure
to:
|
|
(i)
|
require
the deposit with it of any deed or document certifying, representing or
constituting the title of any Obligor to any of the Charged
Property;
|
|
(ii)
|
obtain
any licence, consent or other authority for the execution, delivery,
legality, validity, enforceability or admissibility in evidence of any of
the Transaction Security Documents or the Transaction
Security;
|
|
(iii)
|
register,
file or record or otherwise protect any of the Transaction Security (or
the priority of any of the Transaction Security) under any applicable laws
in any jurisdiction or to give notice to any person of the execution of
any of the Transaction Security Documents or of any Transaction
Security;
|
|
(iv)
|
take,
or to require any of the Obligors to take, any steps to perfect its title
to any of the Charged Property or to render any Encumbrance created under
and/or pursuant to the Transaction Security Documents effective or to
secure the creation of any ancillary Security under the laws of any
jurisdiction; or
|
|
(v)
|
require
any further assurances in relation to any of the Transaction Security
Documents.
|
(l)
|
The
Security Agent shall not be under any obligation to insure any of the
Charged Property, to require any other person to maintain any insurance or
to verify any obligation to arrange or maintain insurance contained in the
Transaction Security Documents. The Security Agent shall not be
responsible for any loss which may be suffered by any person as a result
of the lack of or inadequacy of any such insurance. Where the
Security Agent is named on any insurance policy as an insured party, it
shall not be responsible for any loss which may be suffered by reason of,
directly or indirectly, its failure to notify the insurers of any material
fact relating to the risk assumed by such insurers or any other
information of any kind, unless the Facility Agent shall have requested it
to do so in writing and the Security Agent shall have failed to do so
within fourteen days after receipt of that
request.
|
(m)
|
The
Security Agent shall, acting reasonably, be at liberty to place (at the
cost of the Obligors) any of the Transaction Security Documents and any
other documents or deeds relating to any Transaction Security in any safe
custody selected by the Security Agent (acting reasonably) or with any
financial institution, any company whose business includes the safe
custody of documents or any firm of lawyers of good repute and the
Security Agent shall not be responsible for, or required to insure
against, any loss incurred in connection with that
deposit.
|
(n)
|
The
Security Agent shall be entitled to accept without enquiry, and shall not
be obliged to investigate, such right and title as each of the Obligors
may have to any of the Charged Property and shall not be liable for or
bound to require any Obligor to remedy any defect in its right or
title.
|
(o)
|
The
Security Agent may refrain from doing anything which in its opinion will
or may be contrary to any relevant law of any jurisdiction which would or
might otherwise render it liable to any person, and the Security Agent may
do anything which is, in its opinion, necessary to comply with any such
law.
|
(p)
|
In
acting as agent and/or trustee (as the case may be) for the Secured
Parties, the Security Agent shall be regarded as acting through its agency
and/or trustee division which shall be treated as a separate entity from
any of its other divisions or departments and any information received by
any other division or department of the Security Agent may be treated as
confidential and shall not be regarded as having been given to the
Security Agent’s agency and/or trustee
division.
|
(q)
|
Any
opinion, advice or information on which the Security Agent relies or
intends to rely may be sent or communicated by letter, telex message,
facsimile transmission, telephone or any other means. The
Security Agent shall not be liable for acting on any opinion, advice or
information which is so conveyed, even if the opinion, advice or
information contains some error or is not
authentic.
|
(r)
|
The
Security Agent may accept deposits from, lend money to or provide advisory
or other services to or engage in any kind of banking or other business
with any Party or a Subsidiary or associated company of any of them and
may do so without any obligation to account to or disclose any such
arrangements to any person, whether or not it may or does lead to a
conflict with the interests of any other Party to this
Agreement. Similarly, the Security Agent may undertake business
with or for third parties even though it may lead to a conflict with the
interests of any Party to this
Agreement.
|
(s)
|
The
Security Agent may exercise any of its rights, powers, authorities and
discretions and perform any of its obligations under this Agreement or any
of the Transaction Security Documents through its employees or through
paid or unpaid agents, which may be corporations, partnerships or
individuals (whether or not lawyers or other professional persons), and
shall not be responsible for any misconduct or omission on the part of, or
be bound to supervise the proceedings or acts of, any such employee or
agent. Any such agent which is engaged in any profession or
business shall be entitled to charge and be paid all usual fees, expenses
and other charges for its services.
|
(t)
|
The
Security Agent may at any time and from time to time delegate, whether by
power of attorney or otherwise, to any persons all or any of its rights,
powers, authorities and discretions and the rights, powers, authorities
and discretions which are for the time being exercisable by the Security
Agent under any of the Transaction Security Documents. Any such
delegation may be made upon such terms and conditions (including the power
to sub delegate with the consent of the Security Agent) as the Security
Agent may think fit. The Security Agent shall not be in any way
liable or responsible to any Party or any other person for any loss or
damage arising from any act, default, omission or misconduct on the part
of any such delegate or sub
delegate.
|
(u)
|
The
Security Agent may at any time appoint (and subsequently remove) any
person to act as a separate trustee or as a co-trustee jointly with it (a)
if it considers such appointment to be in the interests of the Secured
Parties or (b) for the purposes of conforming to any legal requirements,
restrictions or conditions which the Security Agent deems to be relevant
or (c) for obtaining or enforcing any judgment in any jurisdiction, and
the Security Agent shall give prior notice to the Borrower and the
Facility Agent of any such appointment. Any person so appointed
(subject to the terms of this Agreement) shall have such rights, powers
and discretions (not exceeding those conferred on the Security Agent by
this Agreement) and such duties and obligations as are conferred or
imposed by the instrument of appointment. The remuneration the
Security Agent may pay to any such person, and any costs and expenses
incurred by such person in performing its functions pursuant to that
appointment shall, for the purposes of this Agreement, be treated as costs
and expenses incurred by the Security
Agent.
|
(v)
|
The
Security Agent and every Receiver, Delegate, sub delegate, attorney, agent
or other person appointed under this Agreement or any of the Transaction
Security Documents may indemnify itself out of the Charged Property
against all proceedings, claims and demands which may be made or taken
against it and all costs, charges, damages, expenses and liabilities which
it may suffer or incur unless suffered or incurred by reason of its own
gross negligence or wilful
misconduct.
|
(w)
|
The
Security Agent shall not have any duty to ensure that any payment or other
financial benefit in respect of any of the Charged Property is duly and
punctually paid, received or collected as and when the same becomes due
and payable or to procure that the correct amounts (if any) are paid or
received or to ensure the taking up of any (or any offer of any) stocks,
shares, rights, moneys or other property paid, distributed, accrued or
offered at any time by way of interest, dividend, redemption, bonus,
rights, preference, option, warrant or otherwise on, or in respect of or
in substitution for any of the Charged
Property.
|
(x)
|
Any
consent given by the Security Agent for the purposes of this Agreement may
be given on such terms and subject to such conditions (if any) as the
Security Agent may require.
|
(y)
|
Nothing
contained in this Agreement shall require the Security Agent to expend or
risk its own funds or otherwise incur any financial liability in the
performance of its duties or the exercise of any right, power, authority
or discretion hereunder if it has grounds for believing the repayment of
such funds or adequate indemnity against, or security for, such risk or
liability is not reasonably assured to
it.
|
(z)
|
The
Security Agent, as between itself and the other Parties, shall have full
power to determine all questions and doubts arising in relation to the
provisions of this Schedule or any Transaction Security Document and any
such determination shall in the absence of manifest error, be conclusive
and binding on the Parties.
|
(aa)
|
Nothing
in this Agreement (other than express terms to the contrary in this
Agreement) shall limit the ability of the Security Agent to exercise any
rights, powers and discretions it may have in its capacity as a Secured
Party.
|
|
(a)
|
first,
in or towards payment of amounts payable (including interest thereon
provided for under any of the Finance Documents) to the Security Agent,
any Receiver and/or any Delegate (in each case, including any receiver,
administrator, delegate, adviser, agent or co-trustee appointed by any of
them) under any of the Finance
Documents;
|
|
(b)
|
second,
in or towards payment of unpaid costs and expenses incurred by or on
behalf of any of the Finance Parties (other than the Security Agent) in
connection with the realisation or enforcement of the Transaction
Security;
|
|
(c)
|
third,
in payment to the Facility Agent (for itself and the other Finance
Parties) for application pro rata in the same order of priority between
all of the Secured Parties, in and towards discharge of each unpaid and
outstanding obligation, sum or liability of the Obligors, any member of
the Parent Group or any one of more of them to any Finance Party under or
in connection with any of the Finance Documents (whether in respect of
principal, interest or any other sum and including any amount which would
constitute such a liability but for any discharge, non-provability,
unenforceability or non-allowability of the same in insolvency or other
proceedings);
|
|
(d)
|
fourth,
if none of the Obligors is under any further actual or contingent
liability under any Finance Document, in payment of the balance, if any,
to any person to whom the Security Agent is obliged to pay in priority to
any Obligor; and
|
|
(e)
|
fifth,
the balance, if any, in payment to the relevant
Obligor,
|
2.2
|
Investment
of Proceeds
|
2.3
|
Currency
Conversion
|
2.4
|
Permitted
Deductions
|
2.5
|
Discharge
of Secured Obligations
|
2.6
|
Clawback
|
|
(a)
|
If
any Secured Party has received an amount as a result of the enforcement of
any Transaction Security and the Security Agent on its behalf is
subsequently required to pay that amount (a “
Clawback Amount
”) to a
liquidator (or any other party) pursuant to a court order, that Secured
Party will immediately pay an amount equal to such Clawback Amount to the
Security Agent for payment to the liquidator (or other relevant
party).
|
|
(b)
|
Each
Secured Party that has received a Clawback Amount shall indemnify the
Security Agent against any and all costs, claims, losses, expenses
(including legal fees) and liabilities together with any VAT thereon which
the Security Agent may incur with respect to that Clawback Amount
otherwise than by reason of the Security Agent’s own gross negligence or
wilful misconduct.
|
2.7
|
Sums
received by Obligors
|
2.8
|
Non
cash Distributions
|
2.9
|
Certificates
|
2.10
|
Preservation
of Liabilities
|
|
(a)
|
by
the receipt of any amount by any Finance Party, if and to the extent that,
by virtue of the operation of this Agreement, such amount is required to
be paid over to (and pending such payment held upon trust for) the
Security Agent for application and distribution pursuant to the terms
hereof; or
|
|
(b)
|
by
the receipt of any amount by the Security Agent pursuant to the terms of
this Agreement for application pursuant to the terms
hereof,
|
2.11
|
Obligors’
Waiver
|
3.
|
ENFORCEMENT
OF SECURITY
|
3.1
|
The
Security Agent shall act in relation to the Transaction Security Documents
in accordance with the instructions of the Majority
Lenders.
|
3.2
|
A
Finance Party shall not be responsible to any other Finance Party with
respect to any instructions given or not given to the Security Agent in
relation to or in connection with any of the Transaction Security
Documents, provided in each case such Finance Party acts in good faith and
in accordance with their obligations under this Agreement and the
applicable Finance Documents.
|
3.3
|
If
any assets are to be sold or otherwise disposed of by or on behalf of the
Security Agent (or by an Obligor at the request of the Security Agent),
either as a result of the enforcement of the Transaction Security or a
disposal by an Obligor after any enforcement action, the Security Agent
may (at the cost of the Obligors) release the relevant assets from the
Security and may enter into, on behalf of, and without the need for any
further consent or authority from, any other
Party:
|
|
(a)
|
any
release of the Transaction Security or any other claim over that asset
(including any claim of contribution or subrogation by any other Obligor)
and to issue any certificate of non crystallisation of any floating charge
that may, in the absolute discretion of the Security Agent, be considered
necessary or desirable;
|
|
(b)
|
if
the asset disposed of consists of all of the shares (being shares held by
an Obligor) in the share capital of an Obligor or any Holding Company of
an Obligor, any release of that Obligor or Holding Company or any of its
Subsidiaries from any liabilities it may have to any Finance Party or
other Obligor, whether actual or contingent, in its capacity as a
guarantor or borrower; or
|
|
(c)
|
if
the asset disposed of consists of all of the shares in the share capital
of an Obligor or any holding company of that Obligor and if the Security
Agent wishes to sell, transfer, assign or otherwise dispose of any
intercompany loans, receivables or other liabilities owed by or to that
Obligor, any agreement to dispose of all or any part of those intercompany
loans, receivables or other liabilities on behalf of the relevant Finance
Party and Obligors (with the proceeds thereof being applied as if they
were the proceeds of enforcement of the Transaction
Security).
|
3.4
|
Each
Finance Party hereby undertakes in favour of the Security Agent to execute
any releases or other documents and take any action which the Security
Agent may reasonably require in order to give effect to the provisions of
this Paragraph 3 (
Enforcement of
Security
), provided that any such release, document or action shall
be without representation or warranty from, or recourse to, any other
Finance Party.
|
3.5
|
The
release of any member of the Parent Group as contemplated in this
Paragraph 3 (
Enforcement
of Security
) will not affect or otherwise reduce the obligations
and/or liabilities of any other member of the Parent Group to any of the
Finance Parties.
|
4.
|
AMENDMENTS
TO TRANSACTION SECURITY DOCUMENTS
|
4.1
|
Any
provision of a Transaction Security Document may be amended or waived by
the written agreement of the relevant Obligor(s) and the Security Agent
(acting pursuant to Paragraph 4.2
below).
|
4.2
|
In
agreeing to amend, release or waive the provisions of any Transaction
Security Document, the Security Agent shall act (unless otherwise provided
in this Agreement) in accordance with the instructions
of:
|
|
(i)
|
each
Lender affected thereby, if within the circumstances envisaged by Clause
38.2 (
Exceptions
);
or
|
|
(ii)
|
the
Majority Lenders.
|
5.
|
SECURED
PARTIES’ INFORMATION
|
6.
|
WINDING-UP
OF TRUST AND PERPETUITY PERIOD
|
6.1
|
Winding
up of Trust
|
6.2
|
Perpetuity
Period
|
7.
|
CONFLICT
WITH TRANSACTION SECURITY DOCUMENTS
|
/s/ Petr Dvorak
|
/s/ Milan Cimirot
|
|||
By:
|
Ing.
Petr Dvořák
|
By:
|
Milan
Cimirot
|
|
Title:
|
Statutory
Executive
|
Title:
|
Statutory
Executive
|
Address:
|
Prague
5, Kříženeckého
nám. 1078/5, P
ost Code 152 00, Czech
Republic
|
Attention:
|
Mr.
Milan Cimirot, Statutory Executive
|
Fax:
|
+420
233 100 143
|
Address:
|
Prague
5, Kříženeckého
nám. 1078/5, P
ost Code 152 00, Czech
Republic
|
Attn:
|
Treasury
Department
|
Fax:
|
+420
242 466 010
|
By:
|
/s/ Charles
Frank
|
Title:
|
Chief
Financial Officer
|
Address:
|
Mintflower
Place
|
Attn:
|
Assistant
Secretary
|
Fax:
|
+ 1
441 295 0992
|
By:
|
/s/ Alphons van
Spaendonck
|
/s/ Henk van
Wijlen
|
Title:
|
Managing
Director
|
On
behalf of Pan-Invest B.V.
|
Address:
|
Dam
5B
|
Attn:
|
Finance
Officer
|
Fax:
|
+312
042 31404
|
By:
|
/s/ Alphons van
Spaendonck
|
/s/ Henk van
Wijlen
|
Title:
|
Managing
Director
|
On
behalf of Pan-Invest B.V.
|
Address:
|
Dam
5B
|
Attn:
|
Finance
Officer
|
Fax:
|
+312
042 31404
|
By:
|
/s/ Alphons van
Spaendonck
|
/s/ Henk van
Wijlen
|
Title:
|
Managing
Director
|
On
behalf of Pan-Invest B.V.
|
Address:
|
Dam
5B
|
Attn:
|
Finance
Officer
|
Fax:
|
+312
042 31404
|
/s/ V
á
clav
Mika
|
/s/ Radka Doehring
|
|||
By:
|
Václav
Mika
|
By:
|
Radka
Doehring
|
|
Title:
|
Executive
|
Title:
|
Executive
|
Address:
|
Bratislavská
1/a
|
Attn:
|
Finance
Director
|
Fax:
|
+421
2 6595 6829
|
/s/ Harold Mueller
|
/s/ Sergiy Loban
|
|||
By:
|
Harald
Mueller
|
By:
|
Sergiy
Loban
|
|
Title:
|
Head
of Structuring & Credit Markets
|
Title:
|
Senior
Manager
|
|
Loan
Syndication & Corporate
Solutions
|
Address:
|
Václavské
náměstí 16, 110 00 Prague 1, Czech
Republic
|
Fax:
|
+420
224 402 560
|
Attention:
|
Corporate
and Acquisition Finance Praha
|
/s/ František Havrda
|
/s/ Václav Šnýdr
|
|||
By:
|
František
Havrda
|
By:
|
Václav
Šnýdr
|
|
Title:
|
Authorised
Signatory
|
Title:
|
Authorised
Signatory
|
Address:
|
Prague
6, Evropská 2690/17, Post Code: 160 00, Czech
Republic
|
Fax:
|
+420
224 641 080
|
Attention:
|
Václav
Šnýdr/František Havrda
|
/s/ František Havrda
|
/s/ Václav Šnýdr
|
|||
By:
|
František
Havrda
|
By:
|
Václav
Šnýdr
|
|
Title:
|
Authorised
Signatory
|
Title:
|
Authorised
Signatory
|
Address:
|
Prague
6, Evropská 2690/17, Post Code: 160 00, Czech
Republic
|
Fax:
|
+420
224 641 080
|
Attention:
|
Václav
Šnýdr/František Havrda
|
/s/ František Havrda
|
/s/ Václav Šnýdr
|
|||
By:
|
František
Havrda
|
By:
|
Václav
Šnýdr
|
|
Title:
|
Authorised
Signatory
|
Title:
|
Authorised
Signatory
|
Address:
|
Prague
6, Evropská 2690/17, Post Code: 160 00, Czech
Republic
|
Fax:
|
+420
224 641 080
|
Attention:
|
Václav
Šnýdr/František Havrda
|
/s/ Petr Hanák
|
/s/ Jan Nosek
|
|||
By:
|
Petr
Hanák
|
By:
|
Jan
Nosek
|
|
Title:
|
proxy
|
Title:
|
proxy
|
Address:
|
nám.
Republiky 3a, 110 00 Praha 1, Czech
Republic
|
Fax:
|
+420 221 119
115
|
Attention:
|
Petr
Hanák / Jan Nosek
|
/s/ Ali El Amari
|
|
By:
|
Ali
El Amari
|
Title:
|
Associate
|
Address:
|
37,
Place du Marché St Honoré, Paris,
France
|
Fax:
|
33
(01) 42 98 10 65
|
Attention:
|
Sandra
Sitbon/Ali El Amari
|
RSL
SAVANNAH LLC
|
||
By:
|
/s/
Ronald Lauder
|
|
Name:
Ronald S. Lauder
|
||
Title:
Sole Member
|
||
RSL
INVESTMENT LLC
|
||
By:
|
/s/
Ronald Lauder
|
|
Name:
Ronald S. Lauder
|
||
Title:
Sole Member and President
|
||
RSL
INVESTMENTS CORPORATION
|
||
By:
|
/s/
Ronald Lauder
|
|
Name:
Ronald S. Lauder
|
||
Title:
Chairman
|
||
/s/Ronald
Lauder
|
||
Ronald
S. Lauder
|
CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD.
|
||
By:
|
/s/
Wallace Macmillan
|
|
Name:
Wallace Macmillan
|
||
Title:
Chief Financial Officer
|
TIME
WARNER MEDIA HOLDINGS B.V.
|
||
By:
|
/s/
Stephen Kapner
|
|
Name:
/s/ Stephen N. Kapner
|
||
Title:
Director
|
||
(a)
|
Agreement to be
Bound
. Holder hereby agrees that upon execution of this
Joinder, that Holder shall become a Party to the Investor Rights Agreement
and shall be fully bound by, and subject to, all of the covenants, terms
and conditions of the Investor Rights Agreement, as if Holder had signed
the Investor Rights Agreement and been an original party
thereto. Holder agrees that [he/she/it] shall be [an “RSL][a
“TW] Investor” for all purposes under the Investor Rights
Agreement.
|
(b)
|
Representations and
Warranties
. Holder hereby represents and warrants as
follows: (i) Holder has all requisite power and authority to enter into
this Joinder and to carry out his, her or its obligations hereunder; (ii)
this
Joinder
has
been duly executed by Holder, and constitutes a valid and binding
obligation enforceable against Holder in accordance with its terms; and
(iii) Holder has received a copy of the Investor Rights Agreement and any
and all other information and materials that Holder deems reasonably
necessary or appropriate to enable Holder to make an informed decision
concerning the transactions contemplated by the Investor Rights
Agreement.
|
(c)
|
Successors and
Assigns
. This Joinder shall bind and inure to the
benefit of and be enforceable by the Company and its successors and
assigns and Holder and any subsequent holder of Equity Securities, and the
respective successors
and
assigns of
each of them, for so long as they hold Equity
Securities.
|
(d)
|
Applicable
Law
. THIS JOINDER SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE
LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE PRINCIPLES OF
CONFLICTS OF LAWS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
|
Holder
|
||
By: | ||
|
Name:
|
|
Title:
|
RSL
SAVANNAH LLC
|
||
By:
|
/s/
Ronald Lauder
|
|
Name:
Ronald S. Lauder
|
||
Title:
Sole Member
|
||
/
s/ Ronald
Lauder
|
||
Ronald
S. Lauder (for purposes of Section 5.4
only)
|
TIME
WARNER MEDIA HOLDINGS B.V.
|
||
By:
|
/s/
Stephen Kapner
|
|
Name:
Stephen N. Kapner
|
||
Title:
Director
|
CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD.
|
||
By:
|
/s/
Wallace Macmillan
|
|
Name:
Wallace Macmillan
|
||
Title:
Chief Financial Officer
|
Holder
|
||
By:
|
Name:
|
|
Title:
|
DATED | June 19, 2009 |
CONTRACT
OF EMPLOYMENT
|
Name
and Address of Employer:
|
CME
Media Services Limited, 5 Fleet Place, London EC4M 7RD, United Kingdom
(the “
Company
”)
|
|
Name
and Address of Employee:
|
Dave
Sturgeon [address redacted]
|
|
Date
this Contract takes effect:
|
July
1, 2009
|
1
COMMENCEMENT OF AND CONDITIONS TO
EMPLOYMENT
|
1.1
|
Your
employment with the Company shall commence on July 1, 2009 or such other
date as agreed between you and the Chief Financial Officer of the CME
group (the “
Commencement
Date
”).
|
1.2
|
You
represent and warrant that you are not bound by or subject to any
contract, court order, agreement, arrangement or undertaking which in any
way restricts or prohibits you from entering into this Contract or
performing your duties under it.
|
2
|
JOB
TITLE AND DUTIES
|
2.1
|
Your
job title is Finance Director of CME Media Services Limited and Deputy
Chief Financial Officer of the CME group reporting to the Chief Financial
Officer of the CME group.
|
2.2
|
Your
main duties are:
|
|
2.2.1
|
management
of all aspects of the Company’s financial
activities;
|
|
2.2.2
|
management
and oversight of the group finance and tax functions of the CME group,
including but not limited to directing activities in the areas of
financial reporting, accounting, tax, financial systems and process for
the CME group;
|
|
2.2.3
|
acting
as statutory director of such entities of the CME group as may be
determined from time to time;
|
|
2.2.4
|
undertaking
tasks or duties delegated by the Chief Financial Officer of the CME group
from time to time;
|
|
2.2.5
|
undertaking
such additional tasks in respect of the business of the Company as the
President and Chief Operating Officer or the Chief Financial Officer of
the CME group directs from time to time;
and
|
|
2.2.6
|
travelling
to such countries as directed by the President and Chief Operating Officer
or the Chief Financial Officer of the CME group to undertake tasks
specified by him. In addition to your main duties you will be
required to carry out such other duties consistent with your position as
the Company may from time to time reasonably
require.
|
2.3
|
You
shall use your best endeavours to promote and protect the interests of the
Company and shall not do anything that is harmful to those
interests.
|
2.4
|
You
shall devote the whole of your working time (unless prevented by
ill-health or accident or otherwise directed by the Company) to the duties
of this Contract and you shall not be directly or indirectly interested or
concerned in any manner in any other business (other than holding as a
bona-fide personal investment equity in any company whose shares are
listed on any recognised exchange or is otherwise not a Restricted
Business as defined in clause 19.1) except with the Company’s prior
written consent. If such consent is given, you must provide the Company
with the number of hours worked for any other employer each
month.
|
3
PLACE OF WORK
|
3.1
|
You
will be based in the Company’s London office or at such other place as the
Company may from time to time reasonably require. If you are
required by the Company to work outside the United Kingdom for a period of
more than one month, the Company will confirm in writing any terms
relating to such period.
|
3.2
|
The
duties of this appointment shall relate primarily the countries in which
the CME group holds interests in television stations. You may
also be required to travel to other destinations from time to time as
reasonably required by the Company for the proper performance of your
duties.
|
4
REMUNERATION
|
4.1
|
From
the Commencement Date, your basic salary is 250,000 pounds (£) per year,
payable monthly in arrears by credit transfer into your bank account after
all necessary deductions for relevant taxes and social security payments.
Your salary will be reviewed on an annual basis. The first
review will take place on or about the first anniversary of your
Commencement Date. Any increase is entirely at the Company’s
discretion.
|
4.2
|
You
shall be entitled to participate in such annual discretionary bonus scheme
as may be in place from time to time and on such terms as may be
determined by the Company. The amount, if any, of such a bonus
shall be determined by the President and Chief Operating Officer of the
CME group, pursuant to the rules of any such discretionary bonus scheme.
Any bonus awarded will be based on a figure representing 50% of your gross
annual salary.
|
5
OTHER BENEFITS
|
5.1
|
You
are entitled to membership of such insurance schemes (each referred to
below as an “
insurance
scheme
”) provided by the Company from time to time,
including:
|
5.1.1 |
a
medical and dental expenses insurance scheme providing such cover for you
and your spouse/partner and any children under the age of eighteen (18) as
the Company may from time to time notify to
you;
|
5.1.2 |
a
salary continuance on long-term disability insurance scheme providing such
cover for you as the Company may from time to time notify to you;
and
|
5.1.3 |
a
life insurance scheme providing such cover for you as the Company may from
time to time notify to you.
|
5.2
|
Benefits
shall be subject to the terms of any applicable insurance policy and are
conditional upon your complying with and satisfying any applicable
requirements of the insurers or other benefits provider. Copies
of these rules and policies and particulars of the requirements shall be
provided to you on request. The Company shall not have any
liability to pay any benefit to you under any insurance scheme unless it
receives payment of the benefit from the insurer under the
scheme.
|
5.3
|
Any
insurance scheme which is provided for you is also subject to the
Company’s right to alter the cover provided or any term of the scheme or
to cease to provide (without replacement) the scheme at any time if in the
reasonable opinion of the Company your state of health is or becomes such
that the Company is unable to insure the benefits under the scheme at the
normal premiums applicable.
|
5.4
|
The
provision of any insurance scheme or any benefits hereunder does not in
any way prevent the Company from lawfully terminating this Contract in
accordance with the provisions in clause 10 even if to do so would deprive
you of membership of or cover under any such scheme or
benefit.
|
6
EXPENSES
|
7
HOURS OF WORK
|
8
HOLIDAYS
|
8.1
|
You
are entitled to 30 days’ holiday per annum (in addition to public
holidays) and such other days as may be provided in the Company’s Employee
Handbook, as such number may be modified by an election to purchase or
sell days of holiday under the Company’s Flexible Benefits
Plan.
|
8.2
|
Your
entitlement to holiday accrues pro rata on an annual basis as calculated
from 1 April until 31 March (inclusive) each year (the “
Holiday
Year
”).
|
8.3
|
On
termination, you will be paid only for accrued vacation in the relevant
Holiday Year and not for vacation carried over from the previous
year.
|
8.4
|
If
your employment is terminated without notice, you will not be entitled to
holiday pay for holiday that would have accrued during the notice period,
had you continued to be employed throughout that
time.
|
8.5
|
The
Company may also refuse to allow you to take holiday in circumstances
where it would be inconvenient to the business of the
Company.
|
9 SICKNESS
|
9.1
|
You
will be entitled to sick pay in accordance with the Company’s sick leave
policy set out in the Company’s Employee
Handbook.
|
9.2
|
The
Company may from time to time in its reasonable discretion and at its
expense require you to be examined by a medical advisor nominated by the
Company and you agree to provide such formal consents as may be reasonably
necessary for the results of such examinations to be disclosed to the
Company. Such information obtained from you shall be held in
accordance with the data protection provision as set out in clause 16 of
this Contract.
|
10 TERMINATION
|
10.1
|
The
Company may terminate this Contract on giving you twelve months’ notice in
writing to expire at any time. You are required to give the Company six
months’ notice.
|
10.2
|
The
Company may at any time and in its absolute discretion (whether or not any
notice of termination has been given under clause 10.1 above) terminate
this Contract with immediate effect and make a payment in lieu of
notice. This payment will be comprised solely of
your basic salary (at the rate payable when this option is exercised) in
respect of the portion of the notice period remaining at the time the
Company exercises this option and shall be subject to deductions for
income tax and social security as appropriate. You will not,
under any circumstances, have any right to payment in lieu unless the
Company has exercised its option to pay in lieu of
notice.
|
10.3
|
At
the election of the Company, the payment in lieu of notice will be made at
the times the Company would have made payments to you had notice not been
given or on expiry of the remainder of the period of
notice.
|
10.4
|
Your
employment may be terminated by the Company without notice or payment in
lieu of notice by reason of your gross misconduct. Examples of gross
misconduct are set out in the Company’s Employee
Handbook.
|
10.5
|
Upon
the termination by whatever means of this Contract you shall immediately
return to the Company all documents, computer media and hardware, credit
cards, mobile phones and communication devices, keys and all other
property belonging to or relating to the business of the Company which is
in your possession or under your power or control and you must not retain
copies of any of the above.
|
11 SUSPENSION
|
11.1
|
The
Company may suspend you from your duties on full pay to allow the Company
to investigate any bona-fide complaint made against you in relation to
your employment with the Company.
|
11.2
|
Provided
you continue to enjoy your full contractual benefits and receive your pay
in accordance with this Contract, the Company may in its absolute
discretion do all or any of the following during the notice period or any
part of the notice period, after you or the Company have given notice of
termination to the other, without breaching this Contract or incurring any
liability or giving rise to any claim against
it:
|
11.2.1 |
exclude
you from the premises of the
Company;
|
11.2.2 |
require
you to carry out only specified duties (consistent with your status, role
and experience) or to carry out no
duties;
|
11.2.3 |
announce
to any of its employees, suppliers, customers and business partners that
you have been given notice of termination or have resigned (as the case
may be);
|
11.2.4 |
prohibit
you from communicating in any way with any or all of the suppliers,
customers, business partners, employees, agents or representatives of the
Company until your employment has terminated except to the extent that you
are authorised by the General Counsel of CME in writing;
and
|
11.2.5 |
require
you to comply with any other reasonable conditions imposed by the
Company.
|
11.3
|
You
will continue to be bound by all obligations owed to the Company under
this Contract until termination of this Contract in accordance with clause
10 or such later date as provided
herein.
|
12 CONFIDENTIAL
INFORMATION
|
12.1
|
You
agree during and after the termination of your employment not to use or
disclose to any person (and shall use your best endeavours to prevent the
use, publication or disclosure of ) any confidential
information:
|
12.1.1 |
concerning
the business of the Company and which comes to your knowledge during the
course of or in connection with your employment or your holding office
with the Company; or
|
12.1.2 |
concerning
the business of any client or person having dealings with the Company and
which is obtained directly or indirectly in circumstances where the
Company is subject to a duty of
confidentiality.
|
12.2
|
For
the purposes of clause 12.1.1 above, information of a confidential or
secret nature includes but is not limited to information disclosed to you
or known, learned, created or observed by you as a consequence of or
through your employment with the Company, not generally known in the
relevant trade or industry about the Company’s business activities,
services and processes, including but not limited to information
concerning advertising, sales promotion, publicity, sales data, research,
programming and plans for programming, finances, accounting, methods,
processes, business plans (including prospective or pending licence
applications or investments in licence holders or applicants), client or
supplier lists and records, potential client or supplier lists, and client
or supplier billing.
|
12.3
|
This
clause shall not apply to information which
is:
|
12.3.1 |
used
or disclosed in the proper performance of your duties or with the consent
of the Company;
|
12.3.2 |
ordered
to be disclosed by a court of competent jurisdiction or otherwise required
to be disclosed by law or pursuant to the rules of any applicable stock
exchange; or
|
12.3.3 |
or
comes into the public domain (otherwise than due to a default by
you).
|
13 INTELLECTUAL
PROPERTY
|
13.1
|
You
shall assign with full title your entire interest in any Intellectual
Property Right (as defined below) to the Company to hold as absolute
owner.
|
13.2
|
You
shall communicate to the Company full particulars of any Intellectual
Property Right in any work or thing created by you and you shall not use,
license, assign, purport to license or assign or disclose to any person or
exploit any Intellectual Property Right without the prior written consent
of the Company.
|
13.3
|
In
addition to and without derogation of the covenants imposed by the Law of
Property (Miscellaneous Provisions) Act 1994, you shall prepare and
execute such instruments and do such other acts and things as may be
necessary or desirable (at the request and expense of the Company) to
enable the Company (or its nominee) to obtain protection of any
Intellectual Property Right vested in the Company in such parts of the
world as may be specified by the Company (or its nominee) and to enable
the Company to exploit any Intellectual Property Right vested in it to its
best advantage.
|
13.4
|
You
hereby irrevocably appoint the Company to be your attorney in your name
and on your behalf to sign, execute or do any instrument or thing and
generally to use your name for the purpose of giving to the Company (or
its nominee) the full benefit of the provisions of this clause and a
certificate in writing signed by any director or the secretary of the
Company that any instrument or act relating to such Intellectual Property
Right falls within the authority conferred by this clause shall be
conclusive evidence that such is the case in favour of any third
party.
|
13.5
|
You
hereby waive all of your moral rights (as defined in the Copyright,
Designs and Patents Act 1988) in respect of any act by the Company and any
act of a third party done with the Company’s authority in relation to any
Intellectual Property Right which is or becomes the property of the
Company.
|
13.6
|
“
Intellectual Property
Right
” means a copyright, know-how, trade secret and any other
intellectual property right of any nature whatsoever throughout the world
(whether registered or unregistered and including all applications and
rights to apply for the same)
which:
|
13.6.1 |
relates
to the business or any product or service of the Company;
and
|
13.6.2 |
is
invented, developed, created or acquired by you (whether alone or jointly
with any other person) during the period of your employment with the
Company;
|
14 DISCIPLINARY
AND GRIEVANCE PROCEDURES
|
15 COLLECTIVE
AGREEMENTS/WORKFORCE AGREEMENTS
|
16 DATA
PROTECTION
|
16.1
|
You
acknowledge that the Company will hold personal data relating to
you. Such data will include your employment application,
address, references, bank details, performance appraisals, work, holiday
and sickness records, next of kin, salary reviews, remuneration details
and other records (which may, where necessary, include sensitive data
relating to your health and data held for equal opportunities
purposes). The Company will hold such personal data for
personnel administration and management purposes and to comply with its
obligations regarding the retention of your records. Your right
of access to such data is as prescribed by
law.
|
16.2
|
By
signing this Contract, you agree that the Company may process personal
data relating to you for personnel administration and management purposes
and may, when necessary for those purposes, make such data available to
its advisors, to third parties providing products and/or services to the
Company and as required by law.
|
17 CONTRACTS
(RIGHTS OF THIRD PARTIES) ACT 1999
|
18 MONITORING
OF COMPUTER SYSTEMS
|
18.1
|
The
Company will monitor messages sent and received via the email and
voicemail system to ensure that employees are complying with the Company’s
Information Technology policy (as detailed in the Company’s Employee
Handbook).
|
18.2
|
The
Company reserves the right to retrieve the contents of messages for the
purpose of monitoring whether the use of the email system is in accordance
with the Company’s best practice, whether use of the computer system is
legitimate, to find lost messages or to retrieve messages lost due to
computer failure, to assist in the investigations of wrongful acts or to
comply with any legal obligation.
|
18.3
|
You
should be aware that no email or voicemail sent or received through the
Company’s system is private. The Company reserves and intends
to exercise its right to review, audit, intercept, access and disclose on
a random basis all messages created from it or sent over its computer
system for any purpose. The contents of email or voicemail so
obtained by the Company in the proper exercise of these powers may be
disclosed without your permission. You should be aware that the
emails or voicemails or any document created on the Company’s computer
system, however confidential or damaging, may have to be disclosed in
court or other proceedings. An email which has been trashed or
deleted can still be retrieved.
|
18.4
|
The
Company further reserves and intends to exercise its right to monitor all
use of the internet through its information technology systems, to the
extent authorised by law. By your signature to this Contract,
you consent to any such monitoring.
|
19 POST-EMPLOYMENT
RESTRICTIONS
|
19.1
|
You
agree for a period of six months after the termination of your employment
that you shall not either on your own account or on behalf of any other
person, firm or company directly or indirectly, carry on or be engaged,
concerned or interested in any business which is competitive with the
business of securing television licences, operating television stations
and/or programming services in which Central European Media Enterprises
Ltd. and/or any Associated Company (as defined below) is engaged and with
which you were actively involved at any time in the twelve months
preceding the termination of your employment (the “
Restricted Business
”)
within the territories of operation of Central European Media Enterprises
Ltd. and/or any Associated Company.
|
19.2
|
You
agree, in connection with the carrying on of the Restricted Business that
for a period of six months after the termination of your employment, you
shall not, either on your own account or on behalf of any other person,
firm or company, directly or indirectly, seek to do business and/or do
business with any person, firm or company who at any time during the
twelve months preceding the termination of your employment had material
dealings with the Company or any Associated Company in the ordinary course
of business.
|
19.3
|
You
agree for a period of six months following the termination of your
employment, that you shall not solicit or employ or cause to be employed,
whether directly or indirectly, any employee of the Company who has
substantial knowledge of confidential aspects of the business of the
Company, and with whom at any time during the period of twelve months
prior to such termination you had material
dealings.
|
19.4
|
Each
of the restrictions in this clause shall be enforceable independently of
each other and its validity shall not be affected if any of the others is
invalid. If any of the restrictions is void but would be valid
if some part of the restriction were deleted, the restriction in question
shall apply with such modification as may be necessary to make it
valid.
|
19.5
|
The
restrictions set forth in this clause 19 shall not apply if the Company is
in breach of this Contract.
|
19.6
|
For
the purposes of this Contract, “
Associated Company
”
shall mean a subsidiary (as defined by the Companies Act 1985 as amended)
and any other company which is for the time being a holding company (as
defined by the Companies Act 1985 as amended) of the Company or another
subsidiary of such holding company.
|
20
|
INDEMNITY
|
20.1
|
The
Company will indemnify you and pay on your behalf all Expenses (as defined
below) incurred by you in any Proceeding (as defined below), whether the
Proceeding which gave rise to the right of indemnification pursuant to
this Contract occurred prior to or after the date of this Contract
provided that you shall promptly notify the Company of such Proceeding and
the Company shall be entitled to participate in such Proceeding and, to
the extent that it wishes, jointly with you, assume the defence thereof
with counsel of its choice. This indemnification shall not
apply if it is determined by a court of competent jurisdiction in a
Proceeding that any losses, claims, damages or liabilities arose primarily
out of your gross negligence, wilful misconduct or bad
faith.
|
20.2
|
The
term ”
Proceeding
”
shall include any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether brought in the name
of the Company or otherwise and whether of a civil, criminal,
administrative or investigative nature, including, but not limited to,
actions, suits or proceedings brought under or predicated upon any
securities laws, in which you may be or may have been involved as a party
or otherwise, and any threatened, pending or completed action, suit or
proceeding or any inquiry or investigation that you in good faith believe
might lead to the institution of any such action, suit or proceeding or
any such inquiry or investigation, by reason of the fact that you are or
were serving at the request of the Company as a director, officer or
manager of any other Associated Company, whether or not you are serving in
such capacity at the time any liability or expense is incurred for which
indemnification or reimbursement can be provided under this
Contract.
|
20.3
|
The
term "
Expenses
”
shall include, without limitation thereto, expenses (including, without
limitation, attorneys fees and expenses) of investigations, judicial or
administrative proceedings or appeals, damages, judgments, fines,
penalties or amounts paid in settlement by or on behalf of you and any
expenses of establishing a right to indemnification under this
Contract.
|
20.4
|
The
Expenses incurred by you in any Proceeding shall be paid by the Company as
incurred and in advance of the final disposition of the Proceeding at your
written request. You hereby agree and undertake to repay such
amounts if it shall ultimately be decided in a Proceeding that you are not
entitled to be indemnified by the Company pursuant to this Contract or
otherwise.
|
20.5
|
The
indemnification and advancement of Expenses provided by this Contract
shall not be deemed exclusive of any other rights to which you may be
entitled under the Company’s Certificate of Incorporation or the
constituent documents of any other Associated Company for which you are
serving as a director, officer or manager at the request of the Company,
the laws under which the Company was formed, or otherwise, and may be
exercised in any order you elect and prior to, concurrently with or
following the exercise of any other such rights to which you may be
entitled, including pursuant to directors and officers insurance
maintained by the Company, both as to action in official capacity and as
to action in another capacity while holding such office, and the exercise
of such rights shall not be deemed a waiver of any of the provisions of
this Contract. To the extent that a change in law (whether by
statute or judicial decision) permits greater indemnification by agreement
than would be afforded under this Contract, it is the intent of the
parties hereto that you shall enjoy by this Contract the greater benefit
so afforded by such change. The provisions of this clause shall
survive the expiration or termination, for any reason, of this Contract
and shall be separately
enforceable.
|
21 GENERAL
|
21.1
|
You
hereby authorise the Company to deduct from any salary payable to you any
sums owing by you to the Company.
|
21.2
|
As
from the effective date of this Contract, all other agreements or
arrangements between you and the Company shall cease to have
effect.
|
21.3
|
This
Contract shall be governed by and construed in accordance with English
law.
|
21.4
|
The
terms set out in this Contract should be read in conjunction with the
various rules and procedures set out in the Company’s Employee
Handbook. The Company’s Employee Handbook does not form part of
this Contract. For the avoidance of doubt, in the event that there is any
conflict between the terms of this Contract and the Company’s Employee
Handbook, this Contract shall
prevail.
|
Signed
as a Deed by CME Media Services Limited acting by:
|
|
Daniel
Penn, Director
|
/s/
Daniel Penn
|
Mark
Wyllie, Attorney
|
/s/
Mark Wyllie
|
Signed
as a Deed by Dave Sturgeon
|
/s/
Dave Sturgeon
|
in
the presence of:
Witness
signature:
|
/s/
Wallace Macmillan
|
Name:
|
Wallace
Macmillan
|
Address:
|
|
|
|
Occupation:
|
Chief
Financial Officer
|
Company
Name
|
Effective
Voting
Interest
|
Jurisdiction
of
Organization
|
Type
of Affiliate (1)
|
|||
Top
Tone Media S.A.
|
80.00%
|
Luxembourg
|
Subsidiary
|
|||
Zopal
S.A.
|
80.00%
|
Luxembourg
|
Subsidiary
|
|||
PRO
BG MEDIA EOOD
|
80.00%
|
Bulgaria
|
Subsidiary
|
|||
LG
Consult EOOD
|
80.00%
|
Bulgaria
|
Subsidiary
|
|||
Top
Tone Media Bulgaria EOOD
|
80.00%
|
Bulgaria
|
Subsidiary
|
|||
Ring
TV EAD
|
80.00%
|
Bulgaria
|
Subsidiary
|
|||
Nova
TV d.d.
|
100.00%
|
Croatia
|
Subsidiary
|
|||
Operativna
Kompanija d.o.o.
|
100.00%
|
Croatia
|
Subsidiary
|
|||
Media
House d.o.o.
|
100.00%
|
Croatia
|
Subsidiary
|
|||
Internet
Dnevnik d.o.o.
|
100.00%
|
Croatia
|
Subsidiary
|
|||
CET
21 spol. s r.o.
|
100.00%
|
Czech
Republic
|
Subsidiary
|
|||
Jyxo,
s.r.o.
|
100.00%
|
Czech
Republic
|
Subsidiary
|
|||
BLOG
Internet, s.r.o.
|
100.00%
|
Czech
Republic
|
Subsidiary
|
|||
Mediafax
s.r.o.
|
100.00%
|
Czech
Republic
|
Subsidiary
|
|||
Media
Pro International S.A.
|
95.00%
|
Romania
|
Subsidiary
|
|||
Media
Vision S.R.L.
|
95.00%
|
Romania
|
Subsidiary
|
|||
Pro
TV S.A.
|
95.05%
|
Romania
|
Subsidiary
|
|||
Sport
Radio TV Media S.R.L.
|
95.04%
|
Romania
|
Subsidiary
|
|||
Music
Television System S.R.L.
|
95.05%
|
Romania
|
Subsidiary
|
|||
Campus
Radio S.R.L.
|
19.01%
|
Romania
|
Equity-Accounted
Affiliate
|
|||
CME
Slovak Holdings B.V.
|
100.00%
|
Netherlands
|
Subsidiary
|
|||
A.R.J.,
a.s.
|
100.00%
|
Slovak
Republic
|
Subsidiary
|
|||
MARK
Í
ZA-SLOVAKIA,
spol. s r.o.
|
100.00%
|
Slovak
Republic
|
Subsidiary
|
|||
GAMATEX,
spol. s r.o.
|
100.00%
|
Slovak
Republic
|
Subsidiary
(in liquidation)
|
|||
A.D.A.M.,
a.s.
|
100.00%
|
Slovak
Republic
|
Subsidiary
(in liquidation)
|
|||
MEDIA
INVEST, spol. s r.o.
|
100.00%
|
Slovak
Republic
|
Subsidiary
|
EMAIL.SK
s.r.o.
|
80.00%
|
Slovak
Republic
|
Subsidiary
|
|||
PMT,
s.r.o.
|
31.50%
|
Slovak
Republic
|
Cost
Investment
|
|||
MMTV
1 d.o.o.
|
100.00%
|
Slovenia
|
Subsidiary
|
|||
Produkcija
Plus d.o.o.
|
100.00%
|
Slovenia
|
Subsidiary
|
|||
POP
TV d.o.o.
|
100.00%
|
Slovenia
|
Subsidiary
|
|||
Kanal
A d.o.o.
|
100.00%
|
Slovenia
|
Subsidiary
|
|||
Euro
3 TV d.o.o.
|
42.00%
|
Slovenia
|
Equity-Accounted
Affiliate
|
|||
TELEVIDEO
d.o.o. (trading as TV Pika)
|
100.00%
|
Slovenia
|
Subsidiary
|
|||
CME
Cyprus Holding II Ltd.
|
100.00%
|
Cyprus
|
Subsidiary
|
|||
TV
Media Planet Ltd.
|
100.00%
|
Cyprus
|
Subsidiary
|
|||
CME
Cyprus Holding Ltd.
|
100.00%
|
Cyprus
|
Subsidiary
|
|||
International
Media Services Ltd.
|
100.00%
|
Bermuda
|
Subsidiary
|
|||
CME
Ukraine Holding II B.V.
|
100.00%
|
Netherlands
|
Subsidiary
|
|||
Grizard
Investments Limited
|
100.00%
|
Cyprus
|
Subsidiary
|
|||
Grintwood
Investments Limited
|
100.00%
|
Cyprus
|
Subsidiary
|
|||
Innova
Film GmbH
|
100.00%
|
Germany
|
Subsidiary
|
|||
1+1
Production
|
100.00%
|
Ukraine
|
Subsidiary
|
|||
Studio
1+1 LLC
|
100.00%
|
Ukraine
|
Subsidiary
|
|||
Ukrainian
Media Services LLC
|
100.00%
|
Ukraine
|
Subsidiary
|
|||
Ukrpromtorg-2003
LLC
|
100.00%
|
Ukraine
|
Subsidiary
|
|||
Gravis-Kino
LLC
|
100.00%
|
Ukraine
|
Subsidiary
|
|||
TV
Stimul LLC
|
100.00%
|
Ukraine
|
Subsidiary
|
|||
TOR
LLC
|
100.00%
|
Ukraine
|
Subsidiary
|
|||
ZHYSA
LLC
|
100.00%
|
Ukraine
|
Subsidiary
|
|||
Glavred-Media
LLC
|
10.00%
|
Ukraine
|
Cost
Investment
|
|||
CME
Media Pro B.V.
|
100.00%
|
Netherlands
|
Subsidiary
|
|||
Media
Pro Pictures s.r.o.
|
100.00%
|
Czech
Republic
|
Subsidiary
|
|||
Zmĕna,
s.r.o.
|
51.00%
|
Czech
Republic
|
Subsidiary
|
|||
Taková
normální rodinka, s.r.o.
|
51.00%
|
Czech
Republic
|
Subsidiary
|
|||
Media
Pro Pictures S.A.
|
100.00%
|
Romania
|
Subsidiary
|
|||
Media
Pro Distribution S.R.L.
|
100.00%
|
Romania
|
Subsidiary
|
|||
Media
Pro Music and Entertainment S.R.L.
|
100.00%
|
Romania
|
Subsidiary
|
|||
Pro
Video S.R.L.
|
100.00%
|
Romania
|
Subsidiary
|
|||
Hollywood
Multiplex Operation S.R.L.
|
100.00%
|
Romania
|
Subsidiary
|
Domino
Production S.R.L.
|
51.00%
|
Romania
|
Subsidiary
|
|||
Studiourile
Media Pro S.A.
|
92.20%
|
Romania
|
Subsidiary
|
|||
Promance
International S.R.L.
|
100.00%
|
Romania
|
Subsidiary
|
|||
Pro
Video Film and Distribution Kft
|
100.00%
|
Hungary
|
Subsidiary
|
|||
Central
European Media Enterprises N.V.
|
100.00%
|
Netherlands
Antilles
|
Subsidiary
|
|||
Central
European Media Enterprises II B.V.
|
100.00%
|
Netherlands
Antilles
|
Subsidiary
|
|||
CME
Media Enterprises B.V.
|
100.00%
|
Netherlands
|
Subsidiary
|
|||
CME
Investments B.V.
|
100.00%
|
Netherlands
|
Subsidiary
|
|||
CME
Programming B.V.
|
100.00%
|
Netherlands
|
Subsidiary
|
|||
CME
Ukraine Holding B.V.
|
100.00%
|
Netherlands
|
Subsidiary
|
|||
CME
Development Financing B.V.
|
100.00%
|
Netherlands
|
Subsidiary
|
|||
CME
Ukraine Holding GmbH
|
100.00%
|
Austria
|
Subsidiary
|
|||
CME
Development Corporation
|
100.00%
|
Delaware
(USA)
|
Subsidiary
|
|||
CME
Media Services Limited
|
100.00%
|
United
Kingdom
|
Subsidiary
|
|||
CME
Services s.r.o.
|
100.00%
|
Czech
Republic
|
Subsidiary
|
|||
CME
SR d.o.o.
|
100.00%
|
Serbia
|
Subsidiary
|
/s/ Adrian Sarbu
|
|
Adrian
Sarbu
|
|
President
and Chief Executive Officer
|
|
February
24, 2010
|
/s/ Charles Frank
|
|
Charles
Frank
|
|
Chief
Financial Officer
|
|
February
24, 2010
|
1
|
the
Report fully complies with the requirements of Section 13(a) or 15(d) of
the Securities Exchange Act of 1934;
and
|
2
|
the
information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the Company
as of the dates and for the periods explained in the
report.
|