Exhibit 10.1
EXECUTION COPY
SHAREHOLDER LOAN AGREEMENT
This loan agreement, dated as of February 1, 2002, (this "AGREEMENT")
is hereby made by and between:
POLSKA TELEWIZJA CYFROWA WIZJA TV SP. Z O.O., a limited liability
company organized under the laws of the Republic of Poland, having its
registered office at xx. Xxxxxxxxxxxx 00, 00-000 Xxxxxx, Xxxxxx (the "LENDER"),
and
TELEWIZYJNA KORPORACJA PARTYCYPACYJNA S.A., a joint stock company
organized under the laws of the Republic of Poland, having its registered office
at Xxxxxxxxx Xx. 0, 00-000 Xxxxxx, Xxxxxx (the "BORROWER").
WITNESSETH
WHEREAS, the Lender owns 25% of the share capital of the Borrower;
WHEREAS, the Lender and the Borrower are among the parties to the
contribution and subscription agreement dated August 10, 2001 (the "CONTRIBUTION
AND SUBSCRIPTION AGREEMENT"), as amended by the closing agreement dated December
7, 2001 (the "CLOSING AGREEMENT"), together with Groupe Canal+ S.A., owner of
49% of the share capital of the Borrower; and
WHEREAS, pursuant to Article 3.1 (d) of the Contribution and
Subscription Agreement, the Lender and Groupe Canal+ S.A. each agreed to make a
shareholder loan to the Borrower; and
WHEREAS, the Lender agreed in said Article 3.1(d) of the Contribution
and Subscription Agreement, to make a loan in the amount of the PLN equivalent
of 30 million Euros to the Borrower, subject to the terms and conditions set
forth herein;
NOW, THEREFORE, the parties hereto agree as follows.
SECTION 1
DEFINITIONS
In addition to terms defined elsewhere in this Agreement, wherever used
herein, unless the context otherwise requires, the following terms have the
following meanings:
"BUSINESS DAY" means a day, other than a Saturday or a Sunday, on which
commercial banks are open for business in Paris, France or Warsaw, Poland.
"CLOSING AGREEMENT" has the meaning provided in the recitals.
"CONTRIBUTION AND SUBSCRIPTION AGREEMENT" has the meaning provided in
the recitals.
"EFFECTIVE DATE" means the date first set forth in this Agreement.
"EURIBOR" means the European Inter-Bank Offered Rate applicable to
three (3) month deposits in Euros as quoted by National Westminster Bank plc in
the Reuters EURIBOR page at approximately 11.00 a.m., Brussels time, on the
second (2nd) Business Day before the commencement of the relevant Interest
Period.
"EVENT OF DEFAULT" has the meaning provided in Section 7.
"GROUPE CANAL+ LOAN" means that certain loan agreement, dated the date
hereof, entered into by and between Groupe Canal+ S.A. and the Borrower pursuant
to Article 3.1 (d) of the Contribution and Subscription Agreement.
"INTEREST PERIOD" means the twelve (12) month period beginning on
January 1 and ending on December 31 of the applicable year; EXCEPT, that the
initial Interest Period shall be the period commencing on and including the date
the Loan is first disbursed and up to and including December 31, 2002, and the
final Interest Period shall be the period commencing on and including January 1,
2012 and up to and including February 1, 2012.
"INTEREST RATE" has the meaning provided in Section 3.1.
"LOAN" has the meaning provided in Section 2.1.
"MAXIMUM INTEREST RATE" has the meaning provided in Section 3.1.
"PRINCIPAL AMOUNT" means the principal amount of the Loan expressed in
Euros.
"PROFIT" means annual positive net income. Profit shall be determined,
for the purposes of this Agreement, on the basis of the audited annual financial
statements of the Borrower, which shall be provided to the Lender no later than
eight (8) months following the end of the Interest Period in question.
"REPAYMENT DATE" means February 1, 2012.
SECTION 2
LOAN; USE OF PROCEEDS
1. LOAN
Subject to the terms and conditions of this Agreement, the Lender
agrees to extend to the Borrower, and the Borrower agrees to borrow from the
Lender, on the date hereof, a loan in the amount of the PLN equivalent of 30
million Euros, calculated using the best exchange rate of Euro to PLN, on the
basis of the bank's commercial purchase rate for Euro which the Lender can
obtain in good faith from its bank, being Bank Handlowy w Warszawie S.A., on the
date hereof (the "LOAN").
2. USE OF PROCEEDS
The Loan will be granted by the Lender on the express condition that
the proceeds be used solely to fund the operations of the Borrower and its
operating subsidiaries, and the Borrower covenants to, and will cause its
operating subsidiaries to, use the proceeds of the Loan solely for such
purposes.
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SECTION 3
INTEREST
1. INTEREST RATE
(a) The interest rate applicable to each Interest Period shall be equal
to a variable interest rate equal to EURIBOR plus three percent (3.0%) (the
"INTEREST RATE"), which will accrue during each Interest Period but which will
not be capitalized and which will only be payable when the Borrower has made a
Profit in respect of the prior Interest Period.
(b) The maximum Interest Rate over the life of the Loan shall not
exceed the lesser of (i) 7.0% per annum and (ii) the total net interest rate
applicable over the life of the Groupe Canal+ Loan, it being understood that
such rate shall never be lower than an arm's-length market interest rate (the
"MAXIMUM INTEREST RATE")
The Loan shall bear interest at the Interest Rate based on a 360-day
year until actual repayment of the Loan or the relevant portion thereof.
The Interest Rate shall be applied to the deemed principal amount of 30
million Euros or the relevant portion thereof outstanding at any time.
2. PAYMENT OF INTEREST
Interest for each Interest Period, subject to Section 3.1, shall be due
and payable no later than 12 months following the end of the relevant Interest
Period. Interest for the final Interest Period shall be due and payable on the
Repayment Date. Any unpaid interest shall be paid at the latest on the Repayment
Date, at which time any adjustment to the total net interest rate, pursuant to
Section 3.1 (b) above, shall also be made. Notwithstanding the foregoing, the
parties irrevocably agree that the failure to pay interest when due at any time
other than the Repayment Date shall not constitute a default hereunder and that
the only remedy for any failure to pay interest at any time other than the
Repayment Date shall be the annual compounding of such interest to the extent
permitted by law.
SECTION 4
STATUS OF THE LOAN
The Loan shall at all times rank at least PARI PASSU in right of
payment to all other indebtedness created, issued or assumed by the Borrower,
unless reclassified pursuant to a mandatory provision of applicable law.
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SECTION 5
REPRESENTATION AND WARRANTIES OF THE BORROWER
The Borrower hereby represents and warrants to the Lender that as of
the date of signing of this Agreement:
(i) it is a joint stock company duly organized and
validly existing under the laws of Poland;
(ii) the Agreement has been signed by duly authorized
representatives of the Borrower and constitutes a
legal, binding and enforceable obligation of the
Borrower;
(iii) it is not in default under any financial indebtedness
in an amount exceeding EURO 10,000 or its equivalent
in any foreign currency;
(iv) no Event of Default has occurred and is continuing;
(v) no litigation, arbitration or administrative
proceedings is pending or threatened against the
Borrower or any of its assets which could reasonably
be expected to materially and adversely affect the
Borrower's ability to perform its obligations under
this Agreement; and
(vi) all consents and filings have been obtained which are
necessary for the carrying on of its business and all
such consents and filings are in full force and
effect.
SECTION 6
PAYMENTS
1. REPAYMENT
The Loan shall be repaid in full not later than on the Repayment Date
in the amount being the PLN equivalent of 30 million Euros calculated using the
best exchange rate of Euro to PLN, on the basis of the bank's commercial
purchase rate for Euro which the Borrower can obtain in good faith from its
bank, being Societe Generale Bank (Warsaw Office) on the Repayment Date.
2. PAYMENT
Unless otherwise agreed by the Lender and the Borrower, any payments
under this Agreement shall be made in PLN, in immediately available funds, by
deposit to the bank account indicated by the Lender to the Borrower in writing;
PROVIDED, that any such payment amount shall be equal to the PLN equivalent of
such payment amount in Euro using the best exchange rate of Euro to PLN, on the
basis of the bank's commercial purchase rate for Euro which the Borrower can
obtain in good faith from its bank, being Societe Generale Bank (Warsaw Office)
on the date of each such payment. Payments received from the Borrower
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shall be applied to discharge indebtedness in the following order:
(i) interest on the Loan payable pursuant to Section 3.1;
(ii) any other amounts payable by the Borrower pursuant to
this Agreement other than unpaid principal of the
Loan; and
(iii) unpaid principal of the Loan.
3. PREPAYMENT
The Borrower may prepay the Loan, in whole or in part, together with
interest accrued thereon, or any other amounts due to the Lender under this
Agreement, at any time; PROVIDED, that the amount of interest payable on any
prepaid principal amount shall be equal to the present value of interest that
the Lender would have received assuming an interest rate of EURIBOR (as adjusted
each Interest Period in accordance with the terms of the Loan) plus three and a
half percent (3.5%) on the prepaid principal amount from the Effective Date
until such prepayment, less all interest already paid on such principal amount.
4. NO SET-OFFS
All payments to be made under this Agreement shall be made without
set-off, and free and clear of and without deduction for or on account of any
present or future taxes imposed, levied, or assessed by the Republic of Poland
or any other jurisdiction, unless the Borrower is compelled to make payment
subject to any such tax. In the event that amounts must be so withheld, the
Borrower shall pay such additional amounts as would be necessary in order that
the amounts received by the Lender after such withholding or deduction shall
equal the amount which would have been receivable hereunder in the absence of
such withholding or deduction. The foregoing requirements may be waived by the
Lender in writing.
5. EXPENSES
The Borrower shall pay any tax or stamp duty levied in connection with
this Agreement.
SECTION 7
EVENTS OF DEFAULT; ACCELERATION
1. ACCELERATION FOR DEFAULT AND OTHERWISE
The Lender may, by notice to the Borrower, declare the principal of,
and all accrued interest on, the Loan (together with any other amounts accrued
or payable under this Agreement) immediately due and payable, if any of the
events specified below (each an "EVENT OF DEFAULT") shall have occurred and be
continuing after the date hereof:
(i) the Borrower shall have failed to pay when due and
payable any principal of the Loan as required by this
Agreement;
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(ii) the Borrower shall have defaulted in the performance
of any of its other material obligations under this
Agreement and such default shall continue for a
period of thirty (30) days after the Borrower
receives notice thereof;
(iii) any competent authority shall have nationalized,
seized or expropriated any substantial part of the
Borrower's property, or shall have taken control of
such property, or shall have taken any action that
would prevent the Borrower from carrying on a
substantial part, or all, of its business or
operations and such action shall not have been
remedied for a period of thirty (30) days after the
Borrower receives notice thereof;
(iv) any adverse change in the financial condition,
business, assets, prospects or results of operations
of the Borrower shall have occurred;
(v) the Borrower shall have defaulted on the performance
of any of its material obligations under any of its
licenses or any applicable Polish broadcasting
regulations;
(vi) any financial indebtedness of the Borrower (x) in
excess of EURO 100,000 in the aggregate shall not
have been paid when due or within any applicable
grace period, or (y) in excess of EURO 500,000 in the
aggregate shall have become due and payable before
its normal maturity; or
(vii) the Borrower shall be the subject, or shall have
itself filed, any proceedings with a view to the
prevention or resolution of business difficulties (or
any similar actions), bankruptcy or other liquidation
of any kind and such motion shall remain undismissed
for a period of sixty (60) days after the Borrower
receives notice thereof.
2. AUTOMATIC ACCELERATION
Any amounts accrued or payable under this Agreement shall become
immediately due and payable, without any notice from the Lender, if the Borrower
shall have been dissolved or if a bankruptcy, liquidation or similar settlement
is decreed.
3. REPORTING
The Borrower shall provide the Lender prompt notice of the occurrence
of any event specified in this Section 7, together with the description of steps
that the Borrower is taking to remedy such event.
SECTION 8
MISCELLANEOUS
1. NOTICES
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Any notice to be made under this Agreement to the Lender or to the
Borrower shall be in writing, in English and shall be deemed duly made when
delivered by hand, airmail, telex or telefax at the address specified below, or
at such other address as such party shall have designated by notice to the
remaining party:
If to the Lender: Polska Telewizja Cyfrowa Wizja TV Sp. z o.o.
xx. Xxxxxxxxx 0X
00-000 Xxxxxx
Xxxxxx
Attention: Management Board
Fax: x00.00.000.0000
If to the Borrower: Telewizyjna Korporacja Partycypacyjna S.A.
Kawalerii Xx. 0
00-000 Xxxxxx
Xxxxxx
Attention: Management Board
Fax: x00.00.000.0000
2. LANGUAGE OF AGREEMENT
This Agreement has been executed in an English version and a Polish
version. It is expressly agreed that, in the event of any discrepancy between
the English and Polish version, the English version shall prevail.
3. DISPUTE RESOLUTION
All disputes arising out of this Agreement or related hereto, shall be
amicably settled by the Parties in good faith negotiations. If any dispute
hereunder is not resolved amicably within 30 days from the date of a pertinent
request by a Party, it will be settled finally by the Arbitration Court at the
National Chamber of Commerce.
The Arbitration shall be conducted in Warsaw in accordance with the
Arbitration Rules of the Arbitration Court at the National Chamber of Commerce,
subject to the following stipulations. The proceedings shall be conducted in
both Polish and English, according to the needs of the Parties. The arbitration
court shall be composed of three arbitrators, one appointed by the claimant(s),
one appointed by the defendant(s), and one appointed jointly by the arbitrators
appointed by the claimant(s) and defendant(s). The third arbitrator shall chair
the arbitration court. If any of the Parties to a dispute fails to appoint its
arbitrator within the period specified in the arbitration rules, or the two
arbitrators fail to appoint the chairman of the arbitration panel, then the
Chairman of the Arbitration Court of the National Chamber of Commerce in Warsaw
shall act as an "appointing authority" within the meaning of the arbitration
rules. The arbitration award shall be final and enforceable in any court of
competent jurisdiction and the Parties agree to comply with it voluntarily
within 10 days from its receipt.
The foregoing provisions of this Section represent an arbitration
clause which excludes the jurisdiction of common courts and constitutes an
agreement for adjudication by an arbitration court (ZAPIS NA SAD POLUBOWNY)
within the meaning of Art. 697 of the Code of
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Civil Procedure.
4. EFFECTIVE DATE
This Agreement shall enter into full force and effect on the Effective
Date without any further action by any party.
5. TERM OF THE AGREEMENT
This Agreement shall continue in force until all amounts payable
hereunder shall have been fully paid in accordance with the provisions hereof.
6. ASSIGNMENT; MODIFICATION
The Borrower hereto may not assign its rights or obligations under this
Agreement without the consent of the Lender. The Lender may assign its right or
obligations under this Agreement without the consent of the Borrower to any
affiliate (as defined in the Contribution and Subscription Agreement) of United
Pan-Europe Communications N.V. This Agreement may not be modified except in
writing signed by both parties.
7. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of Poland.
8. NO THIRD PARTY BENEFICIARIES
This Agreement is solely for the benefit of the Lender and the Borrower
and their respective successors and permitted assigns, and this Agreement shall
not be deemed to confer upon any third party any remedy, claim, liability,
reimbursement, cause of action or other right.
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Execution Copy
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in two originals as of the date first written above.
POLSKA TELEWIZJA CYFROWA WIZJA TV SP. Z O.O.
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TELEWIZYJNA KORPORACJA PARTYCYPACYJNA
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