Contract
Exhibit 33
THIS CONTINUING UNCONDITIONAL GUARANTY IS SUBORDINATED IN ALL RESPECTS TO THE INDEBTEDNESS,
LIABILITIES AND OBLIGATIONS OWING BY THE GUARANTOR ARISING UNDER OR IN CONNECTION WITH THAT CERTAIN
FACILITY AGREEMENT DATED AS OF AUGUST 26, 2004, AS AMENDED FROM TIME TO TIME (THE “FACILITY
AGREEMENT”), AND MAY BE COLLECTED AND ENFORCED ONLY IN ACCORDANCE WITH THE TERMS OF THE
SUBORDINATION AGREEMENT, DATED AS OF FEBRUARY 21, 2007, BY AND AMONG THE LENDER, AS DEFINED BELOW,
AND THE AGENT UNDER THE FACILITY AGREEMENT (THE “SUBORDINATION AGREEMENT”).
This Continuing Unconditional Guaranty (“Guaranty”) is made on February 21, 2007 by
MOSCOW CABLECOM CORP., a Delaware corporation (“Guarantor”), in favor of RME FINANCE LTD, a
company incorporated under the laws of Cyprus (the “Lender”).
PRELIMINARY STATEMENTS
The Guarantor and ZAO COMCOR-TV, a joint-stock corporation organized under the laws of the
Russian Federation (the “Borrower”), entered into a Bridge Facility Agreement of even date
herewith (the “Loan Agreement;” terms used in this Guaranty and not otherwise defined shall
have the meanings given to them in the Loan Agreement) with the Lender. Pursuant to the Loan
Agreement, the Lender has made, and may in the future make, financial accommodations to the
Borrower in accordance with the terms of the Loan Agreement. The Guarantor will continue to
receive certain benefits from such accommodations and is therefore willing to guaranty the prompt
payment and performance of the obligations of the Borrower, on the terms set forth in this
Guaranty. The extension of credit by the Lender to the Borrower is necessary and desirable to the
conduct and operation of the business of the Borrower and will inure to the financial benefit of
the Guarantor.
AGREEMENT
For value received and in consideration of any loan, advance, or financial accommodation of
any kind whatsoever heretofore, now or hereafter made, given or granted to the Borrower by the
Lender (including, without limitation, the loans evidenced by the Notes as made by the Lender to
the Borrower pursuant to the Loan Agreement) and other good and valuable consideration (the
sufficiency and receipt of which are hereby acknowledged), the Guarantor hereby agrees as follows:
ARTICLE 1
GUARANTY
1.1 GUARANTY
The Guarantor unconditionally guarantees to the Lender (a) the full and prompt payment and
performance when due, whether at maturity or earlier, by reason of acceleration or otherwise, and
at all times thereafter, of all liabilities of the Borrower to the Lender and (b) the prompt, full
and faithful discharge by the Borrower of each and every term, condition, agreement,
representation, warranty or covenant now or hereafter made by the Obligors to the Lender, in each
case, under these clauses (a) and (b), pursuant to the Loan Agreement, the Notes, the other
Transaction Documents or any document or instrument delivered by the Borrower to the Lender in
connection therewith or pursuant thereto (which, together with the liabilities described in clause
(a) of this Section 1.1, are collectively referred to in this Guaranty as the “Borrower’s
Liabilities”). The Guarantor further agrees to pay all reasonable out-of-pocket costs and
expenses, including, without limitation, all court costs and reasonable attorneys’ and paralegals’
fees paid or incurred by the Lender, in endeavoring to collect all or any part of the Borrower’s
Liabilities from, or in prosecuting any action against the Guarantor or any other guarantor of all
or any part of the Borrower’s Liabilities. Guarantor indemnifies the Lender from and against and
will pay, immediately upon demand, any cost, loss or liability suffered by the Lender if any
obligation guarantied by it is or becomes unenforceable, invalid or illegal.
1.2 [RESERVED]
1.3 GUARANTY UNCONDITIONAL
The Guarantor hereby agrees that, except as hereinafter provided, and to the extent permitted
by applicable law, its obligations under this Guaranty shall be unconditional, irrespective of (a)
the validity or enforceability of the Borrower’s Liabilities or any part thereof, or of any Note or
other document evidencing all or any part of the Borrower’s Liabilities, (b) the absence of any
attempt to collect the Borrower’s Liabilities from the Borrower or any other guarantor or other
action to enforce the same or the release of such person from liability, (c) the waiver or consent
by the Lender with respect to any provision of any instrument evidencing the Borrower’s
Liabilities, or any part thereof, or any other agreement heretofore, now or hereafter executed by
the Borrower and delivered to Lender, (d) the failure by the Lender to take any steps to perfect
and maintain its security interest in, or to preserve its rights to, any security or collateral for
the Borrower’s Liabilities, (e) the institution of any proceeding under Chapter 11 of Title 11 of
the United States Code (11 U.S.C. §101 et seq.), as amended (the “Bankruptcy Code”), or any
similar domestic or foreign case or proceeding, by or against the Borrower, or the Lender’s
election in any such proceeding of the application of Section 1111(b)(2) of the Bankruptcy Code,
(f) any borrowing or grant of a security interest by the Borrower as debtor-in-possession, under
Section 364 of the Bankruptcy Code, (g) the disallowance, under Section 502 of the Bankruptcy Code,
of all or any portion of the Lender’s claim(s) for repayment of the Borrower’s Liabilities, or (h)
any other circumstance which might otherwise constitute a legal or equitable discharge or defense
of a guarantor.
1.4 WAIVERS
(a) The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims
with a court in the event of receivership or bankruptcy of the Borrower, protest or notice with
respect to the Borrower’s Liabilities and all demands whatsoever, and covenants that this Guaranty
will not be discharged, except by complete performance of the obligations and liabilities contained
herein. Upon the occurrence and during the continuance of an Event of Default under the Loan
Agreement, the Lender may, at its sole election, proceed directly and at once, without notice,
against the Guarantor to collect and recover the full amount or any portion of the Borrower’s
Liabilities, without first proceeding against any other Person, or against any security or
collateral for the Borrower’s Liabilities.
(b) The Guarantor hereby waives any and all claims (including, without limitation, any claim
for reimbursement, contribution or subrogation) of the Guarantor against the Borrower, any endorser
or any other guarantor of all or any part of the Borrower’s Liabilities, or against any of the
Borrower’s properties, arising by reason of any payment by the Guarantor to the Lender pursuant to
the provisions hereof.
(c) The Guarantor hereby waives the benefit of any act or omission by Lender which directly
or indirectly results in or aids the discharge of Borrower from any Obligations by operation of law
or otherwise. The Guarantor waives any defense arising by reason of any disability or other
defense of the Borrower or by reason of the cessation from any cause whatsoever of the liability of
the Borrower. The Guarantor waives any setoff, defense or counterclaim that the Guarantor or the
Borrower may have against the Lender.
1.5 NO SUBROGATION
The Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it
may now have or hereafter acquire against the Borrower that arise from the existence, payment,
performance or enforcement of the Borrower’s Liabilities under or in respect of this Guaranty, the
Loan Agreement, the Notes, the other Transaction Documents or any document or instrument delivered
by the Borrower to the Lender in connection therewith or pursuant thereto, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification
and any right to participate in any claim or remedy of the Lender against the Borrower or any
collateral, whether or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from the Borrower,
directly or indirectly, in cash or other property or by set-off or in any other manner, payment or
security on account of such claim, remedy or right. If any amount shall be paid to any Guarantor
in violation of the immediately preceding sentence at any time prior to the indefeasible payment in
full in cash of the Borrower’s Liabilities and all other amounts payable under
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this Guaranty, such amount shall be received and held in trust for the benefit of the Lender,
shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or
delivered to the Lender in the same form as so received (with any necessary endorsement or
assignment) to be credited and applied to the Borrower’s Liabilities and all other amounts payable
under this Guaranty, whether matured or unmatured, in accordance with the terms of the Notes and
the Loan Agreement, or to be held as collateral for any Borrower’s Liabilities or other amounts
payable under this Guaranty thereafter arising. After the Loan Agreement has been terminated and
the Notes canceled and the indefeasible payment in full in cash of the Borrower’s Liabilities and
all other amounts payable under this Guaranty has occurred, except in the case of a Reinstatement
Event (as defined below), the Agent and the Lender will, at the Guarantor’s request and expense,
execute and deliver to the Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of
an interest in the Borrower’s Liabilities resulting from such payment made by the Guarantor
pursuant to this Guaranty.
1.6 LENDER RIGHTS WITH RESPECT TO XXXXXXXX’S LIABILITIES
The Lender is hereby authorized, without notice or demand and without affecting the liability
of the Guarantor hereunder, at any time and from time to time to (a) increase the amount of, renew,
extend, accelerate or otherwise change the time for payment of, or other terms relating to the
Borrower’s Liabilities or otherwise modify, amend or change the terms of any debenture, note or
other agreement, document or instrument now or hereafter executed by the Borrower and delivered to
the Lender; (b) accept partial payments on the Borrower’s Liabilities; (c) take and hold security
or collateral for the payment of the Borrower’s Liabilities guaranteed hereby, or for the payment
of this Guaranty, or for the payment of any other guaranties of the Borrower’s Liabilities or other
liabilities of the Borrower, and exchange, enforce, waive and release any such security or
collateral; (d) apply such security or collateral and direct the order or manner of sale thereof as
in their sole discretion they may determine; and (e) settle, release, compromise, collect or
otherwise liquidate the Borrower’s Liabilities and any security or collateral therefor in any
manner, without affecting or impairing the obligations of the Guarantor hereunder. The Lender
shall have the exclusive right to determine the time and manner of application of any payments or
credits, whether received from the Borrower or any other source, and such determination shall be
binding on the Guarantor. All such payments and credits may be applied, reversed and reapplied, in
whole or in part, to any of the Borrower’s Liabilities as the Lender shall determine in its sole
discretion without affecting the validity or enforceability of this Guaranty.
1.7 INFORMATION
The Guarantor hereby assumes responsibility for keeping itself informed of the financial
condition of the Borrower, and any and all endorsers of any instrument or document evidencing all
or any part of the Borrower’s Liabilities and of all other circumstances bearing upon the risk of
nonpayment of the Borrower’s Liabilities or any part thereof that diligent inquiry would reveal,
and the Guarantor hereby agrees that the Lender shall not have any duty to advise the Guarantor of
information known to any of them regarding such condition or any such circumstances or to undertake
any investigation not a part of its respective regular business routines. If the Lender, in its
sole discretion, undertakes at any time or from time to time to provide any such information to the
Guarantor, the Lender shall not be under any obligation to update any such information or to
provide any such information to the Guarantor on any subsequent occasion.
1.8 REINSTATEMENT
The Guarantor consents and agrees that the Lender shall not be under any obligation to marshal
any assets in favor of the Guarantor or against or in payment of any or all of the Borrower’s
Liabilities. The Guarantor further agrees that, to the extent that the Borrower makes a payment or
payments to the Lender or the Lender receives any proceeds of collateral, which payment or payments
or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set
aside and/or required to be repaid to the Borrower, its estate, trustee, receiver or any other
party, including, without limitation, the Guarantor, under any bankruptcy law or state or federal
statutory or common law, then to the extent of such payment or repayment, the Borrower’s
Liabilities or the part thereof which has been paid, reduced or satisfied by such amount, and the
Guarantor’s obligations hereunder with respect to such portion of the Borrower’s Liabilities, shall
be reinstated and continued in full force and effect as of the date such initial payment, reduction
or satisfaction occurred. Notwithstanding anything else to the contrary contained herein, the
Guarantor consents and agrees that this Guaranty shall continue to be effective or be reinstated,
as the case may
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be, if at any time any payment of any of the Borrower’s Liabilities is rescinded or must
otherwise be returned by any Lender or any other Person upon the insolvency, bankruptcy or
reorganization of the Borrower or the Guarantor or otherwise, all as though such payment had not
been made (each such continuation or reinstatement, a “Reinstatement Event”).
1.9 ASSIGNMENTS BY XXXXXX
The Lender may, to the extent and in the manner set forth in the Loan Agreement, sell or
assign the Borrower’s Liabilities or any part thereof, or grant participations therein, and in any
such event each and every permitted assignee or holder of, or participant in, all or any of the
Borrower’s Liabilities shall have the right to enforce this Guaranty, by suit or otherwise for the
benefit of such assignee, holder, or participant, as fully as if herein by name specifically given
such right.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
The Guarantor hereby represents and warrants that:
(a) it is a corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware;
(b) it is duly authorized and empowered to execute and deliver this Guaranty;
(c) all corporate action on the part of the Guarantor requisite for the due execution and
delivery of this Guaranty and the due granting and creation of the security interests referred to
herein has been duly and effectively taken;
(d) the principal business address is located at c/o Moscow CableCom Corp., 000 Xxxxxxx Xxx.,
00xx Xxxxx, Xxx Xxxx, XX 00000;
(e) the execution, delivery and performance of this Guaranty will not result in any violation
of, conflict with, or result in a breach of, any of the terms of, or constitute a default under,
any Material Contracts, court orders or consent decrees, the Certificate of Incorporation or the
By-laws, as amended, of the Guarantor;
(f) this Guaranty is a valid and binding obligation of Guarantor, enforceable against
Guarantor in accordance with its terms, except as the enforceability thereof may be subject to or
limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws
relating to or affecting the rights of creditors generally;
(g) neither Guarantor nor its property has any immunity from jurisdiction of any court or from
any legal process (whether through service or notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) under applicable law;
(h) the incurrence of Guarantor’s obligations under this Guaranty will not cause Guarantor to
(i) become insolvent; (ii) be left with unreasonably small capital for any business or transaction
in which Guarantor is presently engaged or plans to be engaged; or (iii) be unable to pay its debts
as such debts mature; and
(i) all representations and warranties contained in this Guaranty shall be true at the time of
Guarantor’s execution of this Guaranty, and shall continue to be true so long as this Guaranty is
in effect.
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ARTICLE 3
MISCELLANEOUS
3.1 SUCCESSORS AND ASSIGNS; ASSIGNMENT BY XXXXXXXXX
This Guaranty shall be binding upon the Guarantor and upon the successors (including without
limitation, any receiver, trustee or debtor in possession of or for the Guarantor) of the Guarantor
and shall inure to the benefit of the Lender and their respective successors and permitted assigns.
Notwithstanding anything contained herein to the contrary, this Guaranty may not be assigned by
the Guarantor without the prior written consent of the Lender.
3.2 TERM OF GUARANTY
This Guaranty shall continue in full force and effect, and the Lender shall be entitled to
make loans and advances and extend financial accommodations to the Borrower on the faith hereof,
until the Loan Agreement has been terminated and the Notes canceled and the indefeasible payment in
full in cash of the Borrower’s Liabilities and all other amounts payable under this Guaranty has
occurred. The Guarantor hereby unconditionally and irrevocably waives any right to revoke this
Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Borrower’s
Liabilities, whether existing now or in the future.
3.3 SEVERABILITY
Wherever possible each provision of this Guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited
by or invalid under such law, such provision shall be ineffective to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the remaining provisions of
this Guaranty.
3.4 GOVERNING LAW
THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WHEREIN THE TERMS OF THIS GUARANTY WERE NEGOTIATED, EXCLUDING TO THE GREATEST EXTENT
PERMITTED BY LAW ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF ANY JURISDICTION OTHER THAN
THE STATE OF NEW YORK.
3.5 CONSENT TO JURISDICTION
(a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the exclusive jurisdiction of the United States District Court for the
Southern District of New York (the “Court”) in any action or proceeding arising out of or relating
to this Agreement or any of the other Transaction Documents to which it is a party or to whose
benefit it is entitled, or for recognition or enforcement of any judgment, and each of the parties
hereto irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Transaction Documents in the courts of
any other jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or in relation to this
Agreement or any other Transaction Document to which it is a party in such Court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in such Court.
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3.6 WAIVER OF JURY TRIAL
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY TRANSACTION DOCUMENT OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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IN WITNESS WHEREOF, this Guaranty has been duly executed by the undersigned as of the
date first written above.
| MOSCOW CABLECOM CORP. |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Chairman | |||
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