DEED OF GUARANTEE AND INDEMNITY between CME MEDIA ENTERPRISES B.V. and EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT Dated - July 21, 2006
between
CME
MEDIA ENTERPRISES B.V.
and
EUROPEAN
BANK
FOR
RECONSTRUCTION AND DEVELOPMENT
Dated
-
July
21, 2006
TABLE
OF CONTENTS
|
ARTICLE
I - INTERPRETATION
|
1
|
|
|
SECTION
1.01.
|
DEFINITIONS
|
1
|
|
SECTION
1.02.
|
INTERPRETATION
|
2
|
|
ARTICLE
II - GUARANTEE AND INDEMNITY
|
2
|
|
|
SECTION
2.01.
|
GUARANTEE
|
2
|
|
SECTION
2.02.
|
INDEMNITY
|
2
|
|
ARTICLE
III - CREDITOR PROTECTIONS
|
3
|
|
|
SECTION
3.01.
|
CONTINUING
SECURITY
|
3
|
|
SECTION
3.02.
|
GUARANTOR
AS PRINCIPAL DEBTOR
|
3
|
|
SECTION
3.03.
|
PRIMARY
OBLIGATION
|
4
|
|
SECTION
3.04.
|
NO
SECURITY
|
4
|
|
ARTICLE
IV - PAYMENTS; DISCHARGE; COSTS
|
5
|
|
|
SECTION
4.01.
|
INTEREST
|
5
|
|
SECTION
4.02.
|
SUSPENSE
ACCOUNT
|
5
|
|
SECTION
4.03.
|
INSUFFICIENT
PAYMENTS
|
5
|
|
SECTION
4.04.
|
NEW
ACCOUNTS
|
6
|
|
SECTION
4.05.
|
DISCHARGE
TO BE CONDITIONAL
|
6
|
|
SECTION
4.06.
|
PAYMENTS
AND TAXES
|
6
|
|
SECTION
4.07.
|
DEMANDS
AND NOTIFICATION BINDING
|
7
|
|
SECTION
4.08.
|
COSTS
AND EXPENSES
|
7
|
|
SECTION
4.09.
|
SET-OFF
|
7
|
|
SECTION
4.10.
|
CURRENCY
INDEMNITY
|
7
|
|
ARTICLE
V - REPRESENTATIONS AND WARRANTIES; UNDERTAKINGS
|
8
|
|
|
SECTION
5.01.
|
REPRESENTATIONS
AND WARRANTIES OF THE GUARANTOR
|
8
|
|
ARTICLE
VI- MISCELLANEOUS
|
9
|
|
|
SECTION
6.01.
|
NOTICES
|
9
|
|
SECTION
6.02.
|
ENGLISH
LANGUAGE
|
10
|
|
SECTION
6.03.
|
RIGHTS,
REMEDIES AND WAIVERS
|
10
|
|
SECTION
6.04.
|
GOVERNING
LAW
|
10
|
|
SECTION
6.05.
|
ARBITRATION
AND JURISDICTION
|
10
|
|
SECTION
6.06.
|
PRIVILEGES
AND IMMUNITIES OF EBRD
|
12
|
|
SECTION
6.07.
|
WAIVER
OF SOVEREIGN IMMUNITY
|
12
|
|
SECTION
6.08.
|
SUCCESSORS
AND ASSIGNS; THIRD PARTY RIGHTS
|
12
|
|
SECTION
6.09.
|
DISCLOSURE
|
12
|
|
SECTION
6.10.
|
SEVERABILITY
|
13
|
|
SECTION
6.11.
|
COUNTERPARTS
|
13
|
i
This
GUARANTEE AND INDEMNITY (this
“Guarantee”) is
made
as a DEED
on July 21,
2006
between CME
MEDIA ENTERPRISES B.V.,
a
private company with limited liability organised and existing under the laws
of
the Netherlands (the "Guarantor"), and EUROPEAN
BANK FOR RECONSTRUCTION AND DEVELOPMENT
("EBRD").
WHEREAS:
(A) By
a loan
agreement (the "Loan Agreement") dated on or about the date hereof between
EBRD and CENTRAL EUROPEAN MEDIA ENTERPRISES LTD. (the "Company"), EBRD agreed
to
extend to the Company a loan (the "Loan"), in the principal amount not to exceed
€100,000,000, on the terms and conditions therein set forth in the Loan
Agreement.
(B) It
is a
condition of disbursement under the Loan Agreement that the Guarantor shall
have
agreed to guarantee the obligations of the Company in respect of the Loan on
terms and conditions satisfactory to EBRD.
(D) The
Guarantor, in consideration of EBRD entering into the Loan Agreement and
agreeing to disburse thereunder, has agreed so to guarantee the obligations
of
the Company under the Financing Agreements.
(E) The
giving of this Guarantee is for the commercial benefit of the
Guarantor.
NOW
THEREFORE THIS DEED WITNESSES,
and the
Guarantor hereby agrees as follows:
ARTICLE
I - INTERPRETATION
|
Section
1.01.
|
Definitions
|
Wherever
used in this Guarantee, unless the context otherwise requires or unless
otherwise defined in this Guarantee, terms defined in the Loan Agreement have
the same meanings herein. The Guarantor has been provided with, and hereby
acknowledges receipt of a copy of the Loan Agreement.
1
|
Interpretation
|
(a) In
this
Guarantee, unless the context otherwise requires, words denoting the singular
include the plural and vice versa, words denoting persons include corporations,
partnerships and other legal persons and references to a person include its
successors and permitted assigns.
(b) In
this
Guarantee, a reference to a specified Article or Section shall be construed
as a
reference to that specified Article or Section of this Guarantee.
(c) In
this
Guarantee, a reference to an agreement shall be construed as a reference to
such
agreement as it may be amended, varied, supplemented, novated or assigned from
time to time.
(d) In
this
Guarantee, the headings and the Table of Contents are inserted for convenience
of reference only and shall not affect the interpretation of this
Guarantee.
(e) In
this
Guarantee, references to this Guarantee are to include the indemnity in Section
2.02.
(f) In
this
Guarantee, references to liability are to include any liability whether actual,
contingent, present or future.
ARTICLE
II - GUARANTEE AND INDEMNITY
|
Section
2.01.
|
Guarantee
|
The
Guarantor irrevocably and unconditionally guarantees (as primary obligor and
not
merely as surety):
(a) to
pay to
EBRD on demand, and in the currency in which the same falls due for payment,
all
monies and liabilities which are now or at any time hereafter shall have been
advanced to, become due, owing or incurred by the Company to or in favour of
EBRD under or in connection with any of the Financing Agreements when and as
the
same shall become due; and
(b) the
due
and punctual performance and discharge by the Company of all of its obligations
and liabilities under the Financing Agreements.
2
|
Section
2.02.
|
Indemnity
|
The
Guarantor, as a separate and independent obligation and liability from its
obligations and liabilities under Section 2.01, irrevocably and unconditionally
agrees to indemnify EBRD in full on demand against all losses, costs and
expenses suffered or incurred by EBRD arising from or in connection with any
one
or more of the purported liabilities or obligations of the Company to EBRD
pursuant to or in consequence of any of the Financing Agreements being or
becoming unlawful, void, voidable or unenforceable, ineffective or otherwise
not
recoverable on the basis of a guarantee (whether by reason of any legal
limitation, illegality, disability or incapacity on or of the Company or the
Guarantor or any other person or by reason of any other fact or circumstance,
and whether or not known to or discoverable by the Guarantor, the Company,
EBRD
or any other person).
ARTICLE
III - CREDITOR PROTECTIONS
|
Section
3.01.
|
Continuing
Security
|
The
Guarantor acknowledges and agrees that this Guarantee is and at all times shall
be continuing security and shall extend to cover the ultimate balance due at
any
time from the Company to EBRD under or in respect of the Financing Agreements
and any of the transactions contemplated thereby regardless of any intermediate
payment or performance or discharge in whole or in part.
|
Section
3.02.
|
Guarantor
as Principal Debtor
|
The
Guarantor acknowledges and agrees that none of its liabilities under this
Guarantee shall be reduced, discharged or otherwise impaired by:
(a) any
variation, extension, discharge, compromise, dealing with, exchange or renewal
of any right or remedy which EBRD may now or hereafter have from or against
the
Company or any other person in respect of any of the obligations and liabilities
of the Company or any other person under and in respect of any of the Financing
Agreements;
(b) any
act
or omission by EBRD or any other person in taking up, perfecting or enforcing
any security, indemnity or guarantee from or against the Company or any other
person;
(c) any
termination, amendment, variation, novation or supplement of or to any of the
Financing Agreements (other than termination following full and irrevocable
payment of all amounts which may be or become payable under or in connection
with the Financing Agreements);
(d) any
grant
of time, indulgence, waiver, consent or concession to the Company and or other
person;
(e) any
of
the insolvency, bankruptcy, liquidation, administration, winding-up, incapacity,
limitation, disability and discharge by operation of law of, and any change
in
the constitution or name of, the Company or any other person;
3
(f) any
invalidity, illegality, unenforceability, irregularity of, or any defect in,
any
provision of any Financing Agreement or any Security or other guarantee or
any
of the actual or purported obligations of the Company or any other person under
or in connection with any Financing Agreement or any Security or any other
guarantee;
(g) any
claim
against or enforcement of payment from the Company or any other person;
(h) the
taking, existence or release of any Security or other guarantee;
(i) the
release of any debtor or co-guarantor or any other person under the terms of
any
composition or arrangement with any creditor of the Company;
(j) any
re-organisation or alteration of the legal structure of the Company or any
other
party to a Financing Agreement;
(k) any
purported or actual assignment of the Financing Agreements by EBRD to any
person; or
(l) any
act
or omission which would not have discharged or affected the liability of the
Guarantor had it been a principal debtor instead of guarantor or indemnitor
or
by anything done or omitted by any person which but for this provision might
operate to exonerate or discharge the Guarantor or otherwise reduce or
extinguish its liability under this Guarantee.
|
Section
3.03.
|
Primary
Obligation
|
EBRD
shall not be obliged before taking steps to enforce any of its rights and
remedies under this Guarantee to make any demand or seek to enforce any right
against the Company or any other person, to obtain judgement in any court
against the Company or any other person or to file any claim in a bankruptcy,
liquidation or similar proceedings of the Company or any other person.
|
Section
3.04.
|
No
Security
|
(a) The
Guarantor warrants to EBRD that it has not taken or received, and agrees not
to
take, exercise or receive the benefit of any security or other right or benefit
(whether by set-off, counterclaim, subrogation, indemnity, proof in liquidation
or otherwise and whether from contribution or otherwise, all together "Rights")
from or against any of the Company and any other person in respect of any
liability of or payment by the Guarantor under this Guarantee or otherwise
in
connection with this Guarantee.
(b) If
any of
such Rights is taken, exercised or received by the Guarantor, the Guarantor
declares that such Rights and all monies at any time received or held in respect
of such Rights shall be held by the Guarantor in trust for EBRD for application
in or towards the discharge of the liabilities of the Guarantor to EBRD under
this Guarantee.
4
(c) The
Guarantor agrees that all other Rights and all monies from time to time held
in
trust by the Guarantor for EBRD under or pursuant to Section 3.04(b) shall
be
transferred, assigned or, as the case may be, paid to EBRD, promptly following
EBRD's demand.
ARTICLE
IV - PAYMENTS; DISCHARGE; COSTS
|
Section
4.01.
|
Interest
|
The
Guarantor agrees to pay interest to EBRD on all sums demanded under this
Guarantee from the date of EBRD's demand under this Guarantee or, if earlier,
the date on which the relevant damages, losses, costs or expenses arose in
respect of which such demand has been made, in each case until the date of
actual payment (after as well as before judgement). Such interest shall be
at
the rate of interest applicable to overdue amounts under the Loan Agreement
and
shall be calculated in accordance with Section 3.06 of the Loan Agreement.
The
amount of interest payable on any such sums for any period pursuant to this
Section shall be reduced by the amount of any interest otherwise paid by the
Guarantor on such sums pursuant to the terms of the Loan Agreement or of any
other Financing Agreement for the same period.
|
Section
4.02.
|
Suspense
Account
|
Until
all
amounts which may be or become payable under or in connection with the Financing
Agreements have been irrevocably paid in full, for the purpose of enabling
EBRD
to ▇▇▇ the Company or the Guarantor or to prove in the bankruptcy, liquidation
or insolvency of the Company or the Guarantor for amounts payable by the Company
under the Loan Agreement or any other Financing Agreement or by the Guarantor
under this Guarantee, or to preserve intact the liability of any other party,
EBRD may at any time place and keep, for such time as EBRD thinks prudent,
any
monies received, recovered or realised hereunder or under any other guarantee
or
security to the credit of an account of the Company, the Guarantor or of such
other person (if any) as EBRD shall think fit, without any obligation on the
part of EBRD to apply the same or any part thereof in or towards the discharge
of any of the monies, obligations and liabilities that are the subject of this
Guarantee.
|
Section
4.03.
|
Insufficient
Payments
|
If
EBRD
at any time receives less than the full amount then due and payable to it under
this Guarantee, EBRD shall have the right to allocate and apply the amount
received in any way or manner and for such purpose or purposes under this
Guarantee as EBRD in its sole discretion determines, notwithstanding any
instruction that the Guarantor may give to the contrary.
5
|
Section
4.04.
|
New
Accounts
|
(a) If
this
Guarantee ceases to be continuing for any reason whatsoever (other than
termination following full and irrevocable payment of all amounts which may
be
or become payable under or in connection with the Financing Agreements), then
EBRD may open a new account or accounts in the name of the Company.
(b) If
EBRD
does not open a new account or accounts pursuant to (a) above, it shall
nevertheless be treated as if it had done so at the time that this Guarantee
ceases to be continuing (whether by determination, calling in or otherwise)
in
relation to the Company.
(c) As
from
that time, all payments made to EBRD by or on behalf of the Company shall be
credited or be treated as having been credited to the new account or accounts
and shall not operate to reduce the amount for which this Guarantee is available
at that time nor shall the liability of the Guarantor under this Guarantee
in
any manner be reduced or affected by any subsequent transactions, receipts
or
payments into or out of any such accounts.
|
Section
4.05.
|
Discharge
to be Conditional
|
Any
release, discharge or settlement between the Guarantor and EBRD in relation
to
this Guarantee shall be conditional upon no right, security, disposition or
payment to EBRD by the Guarantor or any other person being void, set aside
or
ordered to be refunded pursuant to any enactment or law relating to breach
of
duty by any person, bankruptcy, liquidation, administration, protection from
creditors generally or insolvency or for any other reason. If any such right,
security, disposition or payment is void or at any time so set aside or ordered
to be refunded, EBRD shall be entitled subsequently to enforce this Guarantee
against the Guarantor as if such release, discharge or settlement had not
occurred and any such security, disposition or payment had not been
made.
|
Section
4.06.
|
Payments
and Taxes
|
All
amounts due to EBRD under this Guarantee shall be paid without any set-off,
condition or counterclaim whatsoever to such account at such office or bank
as
EBRD may notify to the Guarantor. Such payments shall be free and clear of,
and
without deduction or withholding for or on account of, any taxes, duties, fees
or other charges of whatever nature; provided, however, that, in the event
that
the Guarantor is prevented by operation of law or otherwise from making such
payments free and clear of such deductions or withholdings, the amount due
under
this Guarantee shall be increased to such amount as may be necessary to remit
to
EBRD the full amount it would have received had such payment been made without
such deductions or withholdings.
6
|
Section
4.07.
|
Demands
and Notification Binding
|
Any
demand, notification or certificate given by EBRD specifying amounts due and
payable under or in connection with any of the provisions of this Guarantee
shall, in the absence of manifest error, be conclusive and binding on the
Guarantor.
|
Section
4.08.
|
Costs
and Expenses
|
The
Guarantor shall, on demand and on a full indemnity basis, pay to EBRD the amount
of all costs and expenses (including legal and out-of-pocket expenses and any
value added tax on such costs and expenses) which EBRD incurs in connection
with:
(a) any
actual or proposed amendment, variation, supplement, waiver or consent under
or
in connection with this Guarantee;
(b) any
discharge or release of this Guarantee; and
(c) the
preservation or exercise (or attempted preservation or exercise), and the
enforcement (or attempted enforcement) of, any rights under or in connection
with, this Guarantee.
|
Section
4.09.
|
Set-off
|
EBRD
shall have the right, to the fullest extent permitted by law, to set off any
amount owed by EBRD to the Guarantor, whether or not matured, against any amount
then due and payable by the Guarantor under this Guarantee, whether or not
EBRD
had demanded payment by the Guarantor of such amount and regardless of the
currency or place of payment of either such amount.
|
Section
4.10.
|
Currency
Indemnity
|
If,
under
any applicable law or regulation or pursuant to a judgement or order being
made
or registered against the Guarantor or the liquidation of the Guarantor or
without limitation for any other reason, any payment under or in connection
with
this Guarantee is made or falls to be satisfied in a currency (the "payment
currency") other than the currency in which such payment is expressed to be
due
under or in connection with this Guarantee (the "contractual currency") then,
to
the extent that the amount of such payment actually received by EBRD, when
converted into the contractual currency at the rate of exchange, falls short
of
the amount due under or in connection with this Guarantee, the Guarantor, as
a
separate and independent obligation, shall indemnify and hold harmless EBRD
against the amount of such shortfall. For the purposes of this Clause, "rate
of
exchange" means the rate at which EBRD is able on or about the date of such
payment to purchase, in accordance with its normal practice, the contractual
currency with the payment currency and shall take into account (and the
Guarantor shall be liable for) any premium and other costs of exchange including
any taxes or duties incurred by reason of any such exchange.
7
ARTICLE
V - REPRESENTATIONS AND WARRANTIES; UNDERTAKINGS
|
Section
5.01.
|
Representations
and Warranties of the
Guarantor
|
The
Guarantor hereby represents and warrants to EBRD that:
(a) the
Guarantor is a corporation duly organised and validly existing under the laws
of
the Netherlands;
(b) the
Guarantor is fully familiar with and agrees to all the provisions of the
Financing Agreements and the giving of this Guarantee is for its commercial
benefit;
(c) the
Guarantor has full power and authority (i) to execute and deliver this Guarantee
and all notices, certificates and other documents related to this transaction
and (ii) to comply with the provisions of, and perform all its obligations
under, this Guarantee;
(d) the
Guarantor has taken all necessary actions to authorise the execution and
delivery of this Guarantee and this Guarantee constitutes the Guarantor's legal,
valid and binding obligations enforceable against the Guarantor in accordance
with its terms;
(e) the
entry
into and performance by the Guarantor of this Guarantee does not and will not
violate in any respect (i) any law or regulation of any governmental or official
authority or body, or (ii) the constitutional documents of the Guarantor, or
(iii) any agreement, contract or other undertaking to which the Guarantor is
a
party or which is binding upon the Guarantor or its assets;
(f) all
consents, licences, approvals and authorisations required in connection with
the
entry into, performance, validity and enforceability of this Guarantee and
the
transactions contemplated hereby have been obtained and are in full force and
effect;
(g) it
is not
necessary for the legality, validity, enforceability or admissibility in
evidence of this Guarantee that this Guarantee or any document relating hereto
be registered, filed, recorded or enrolled with any court or authority in any
relevant jurisdiction or that any stamp, registration or similar tax be paid
on
or in relation to this Guarantee;
(h) no
action, suit, proceeding, litigation or dispute against the Guarantor is
presently taking place or pending or, to its knowledge, threatened nor is there
subsisting any judgement or award given against the Guarantor before any court,
arbitral tribunal or other body which, in either case, might have a material
adverse effect on the business or condition (financial or otherwise) of the
Guarantor or on the ability of the Guarantor to perform any of its obligations
under this Guarantee;
8
(i) the
Guarantor is not in default under any material agreement to which it is a party
or by which it is bound (other than intra-Group agreements), and no Event of
Default relating to the Guarantor (or event which, with the giving of notice
or
lapse of time or other applicable condition might constitute an Event of Default
relating to the Guarantor) has occurred and is continuing nor will such a
default or Event of Default (or such event) result from the performance by
the
Guarantor of any of its obligations under this Guarantee; and
(j) the
obligations of the Guarantor under this Guarantee rank and will rank at least
pari
passu
in all
respects with all other present and future unsecured obligations of the
Guarantor (apart from obligations mandatorily preferred by law).
ARTICLE
VI- MISCELLANEOUS
|
Section
6.01.
|
Notices
|
Any
notice, application or other communication to be given or made under this
Guarantee to EBRD or to the Guarantor shall be in writing. Such notice,
application or other communication shall be deemed to have been duly given
or
made when it is delivered by hand, courier or facsimile transmission to the
party to which it is required or permitted to be given or made at such party's
address specified below or at such other address as such party designates by
notice to the party giving or making such notice, application or other
communication.
For the Guarantor:
CME
Media
Enterprises ▇.▇.
▇▇▇
▇▇
▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
Attention:
|
Managing
Director
|
|
Fax:
|
▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
|
With
a
copy to:
c/o
CME
Development Corporation
▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Attention:
|
General
Counsel
|
|
Fax:
|
▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
|
9
For EBRD:
European Bank for Reconstruction and Development
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
Attention:
|
Operation
Administration Unit
|
|
Fax:
|
▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
|
|
Section
6.02.
|
English
Language
|
All
documents to be furnished or communications to be given or made under this
Guarantee shall be in the English language or, if in another language, shall
be
accompanied by a translation into English by a translator acceptable to EBRD,
which translation shall be the governing version between the Guarantor and
EBRD.
|
Section
6.03.
|
Rights,
Remedies and Waivers
|
(a) The
rights and remedies of EBRD in relation to any misrepresentations or breach
of
warranty on the part of the Guarantor shall not be prejudiced by any
investigation by or on behalf of EBRD into the affairs of the Guarantor or
the
Company, by the execution or the performance of this Guarantee or of any other
Financing Agreement or by any other act or thing which may be done by or on
behalf of EBRD in connection with this Guarantee and which might, apart from
this Section, prejudice such rights or remedies.
(b) No
course
of dealing and no delay in exercising, or omission to exercise, any right,
power
or remedy accruing to EBRD under this Guarantee or any other agreement shall
impair any such right, power or remedy or be construed to be a waiver thereof
or
an acquiescence therein. No single or partial exercise of any such right, power
or remedy shall preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. No action of EBRD in respect of any such
default, or acquiescence by it therein, shall affect or impair any right, power
or remedy of EBRD in respect of any other default.
(c) The
rights and remedies provided in this Guarantee and the other Financing
Agreements are cumulative and not exclusive of any other rights or remedies,
whether provided by applicable law or otherwise.
|
Section
6.04.
|
Governing
Law
|
This
Guarantee shall be governed by and construed in accordance with the laws of
England.
|
Arbitration
and Jurisdiction
|
10
(a) Any
dispute, controversy or claim arising out of or relating to this Guarantee,
or
the breach, termination or invalidity hereof, shall be settled by arbitration
in
accordance with the UNCITRAL Arbitration Rules as at present in force. There
shall be one arbitrator and the appointing authority shall be the London Court
of International Arbitration. The seat and place of arbitration shall be London,
England and the English language shall be used throughout the arbitral
proceedings. The parties hereby waive any rights under the Arbitration ▇▇▇
▇▇▇▇
or otherwise to appeal any arbitration award to, or to seek a determination
of a
preliminary point of law by, the courts of England. The arbitral tribunal shall
not be authorised to take or provide, and the Guarantor agrees that it shall
not
seek from any judicial authority, any interim measures of protection or
pre-award relief against EBRD, any provisions of UNCITRAL Arbitration Rules
notwithstanding. The arbitral tribunal shall have authority to consider and
include in any proceeding, decision or award any further dispute properly
brought before it by EBRD (but no other party) insofar as such dispute arises
out of any Financing Agreement, but, subject to the foregoing, no other parties
or other disputes shall be included in, or consolidated with, the arbitral
proceedings.
(b) Notwithstanding
Section 6.05(a), this Guarantee and the other Financing Agreements, and any
rights of EBRD arising out of or relating to this Guarantee or any other
Financing Agreement, may, at the option of EBRD, be enforced by EBRD in the
courts of the Netherlands or England or in any other courts having jurisdiction.
For the benefit of EBRD, the Guarantor hereby irrevocably submits to the
non-exclusive jurisdiction of the courts of England with respect to any dispute,
controversy or claim arising out of or relating to this Guarantee or any other
Financing Agreement, or the breach, termination or invalidity hereof or thereof.
The Guarantor hereby irrevocably designates, appoints and empowers CME
Development Corp.
at its
registered office (being, on the date hereof, at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇) to act as its authorised agent to receive service
of
process and any other legal summons in England for purposes of any legal action
or proceeding brought by EBRD in respect of any Financing Agreement. The
Guarantor hereby irrevocably consents to the service of process or any other
legal summons out of such courts by mailing copies thereof by registered airmail
postage prepaid to its address specified herein. The Guarantor covenants and
agrees that, so long as it has any obligations under this Guarantee, it shall
maintain a duly appointed agent to receive service of process and any other
legal summons in England for purposes of any legal action or proceeding brought
by EBRD in respect of any Financing Agreement and shall keep EBRD advised of
the
identity and location of such agent. Nothing herein shall affect the right
of
EBRD to commence legal actions or proceedings against the Guarantor in any
manner authorised by the laws of any relevant jurisdiction. The commencement
by
EBRD of legal actions or proceedings in one or more jurisdictions shall not
preclude EBRD from commencing legal actions or proceedings in any other
jurisdiction, whether concurrently or not. The Guarantor irrevocably waives
any
objection it may now or hereafter have on any grounds whatsoever to the laying
of venue of any legal action or proceeding and any claim it may now or hereafter
have that any such legal action or proceeding has been brought in an
inconvenient forum.
(c) The
Guarantor agrees to the provisions of this Section 6.05 solely because the
counterparty to this Agreement as at the date hereof is EBRD.
11
|
Section
6.06.
|
Privileges
and Immunities of EBRD
|
Nothing
in this Guarantee shall be construed as a waiver, renunciation or other
modification of any immunities, privileges or exemptions of EBRD accorded under
the Agreement Establishing the European Bank for Reconstruction and Development,
international convention or any applicable law.
|
Section
6.07.
|
Waiver
of Sovereign Immunity
|
The
Guarantor represents and warrants that this Guarantee and the incurring by
the
Guarantor of the obligations hereunder are commercial rather than public or
governmental acts and that the Guarantor is not entitled to claim immunity
from
legal proceedings with respect to itself or any of its assets on the grounds
of
sovereignty or otherwise under any law or in any jurisdiction where an action
may be brought for the enforcement of any of the obligations arising under
or
relating to this Guarantee. To the extent that the Guarantor or any of its
assets has or hereafter may acquire any right to immunity from set-off, legal
proceedings, attachment prior to judgement, other attachment or execution of
judgement on the grounds of sovereignty or otherwise, the Guarantor hereby
irrevocably waives such rights to immunity in respect of its obligations arising
under or relating to this Guarantee.
|
Section
6.08.
|
Successors
and Assigns;
Third Party Rights
|
(a) This
Guarantee shall bind and inure to the benefit of the respective successors
and
assigns of the parties hereto, except that the Guarantor may not assign or
otherwise transfer all or any part of its rights or obligations under this
Guarantee or enter into any transaction which would result in any of those
rights or obligations passing to another person.
(b) EBRD
may
sell, transfer, assign, novate or otherwise dispose of all or part of its rights
or obligations under this Guarantee and the other Financing Agreements
without
the
consent of the Guarantor.
(c) Except
as
provided in Section 6.08(a) or 6.08(b), none of the terms of this Guarantee
are
intended to be enforceable by any third party.
|
Section
6.09.
|
Disclosure
|
EBRD
may
disclose such documents, information and records regarding the Guarantor and
this transaction (including, without limitation, copies of this Guarantee and
any Financing Agreement) as EBRD deems appropriate in connection with any
dispute involving the Guarantor, the Company or any other party to a Financing
Agreement, for the purpose of preserving or enforcing any of EBRD's rights
under
any Financing Agreement or collecting any amount owing to EBRD or in connection
with any proposed Participation or any other proposed sale, transfer,
assignment, novation or other disposal contemplated by Section 6.08; provided,
however, that (save for such disclosure made at any time when an Event of
Default has occurred and is continuing) the recipient to whom any such
information is disclosed provides a confidentiality undertaking in respect
thereof.
12
|
Section
6.10.
|
Severability
|
If
at any
time any one or more of the provisions in this Guarantee is or becomes invalid,
illegal or unenforceable in any respect under any law or regulation, the
validity, legality and enforceability of the remaining provisions of this
Guarantee shall not be in any way affected or impaired thereby.
|
Section
6.11.
|
Counterparts
|
This
Guarantee may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
agreement.
IN
WITNESS WHEREOF,
the
parties hereto, acting through their duly authorised representatives, have
caused this Guarantee to be signed as a Deed in their respective names as of
the
date first above written.
Executed
as a Deed by
CME
MEDIA ENTERPRISES B.V.
|
By:
|
/s/
▇▇▇▇▇▇▇ van Spaendonck
|
|
|
Name:
▇▇▇▇▇▇▇ van Spaendonck
|
||
|
Title:
Managing Director
|
|
By:
|
/s/
Henk van Wijlen
|
|
|
Name:
Pan-Invest, B.V.
|
||
|
Title:
Managing Director
|
13
Executed
as a Deed by
EUROPEAN
BANK
FOR
RECONSTRUCTION AND DEVELOPMENT
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
Acting Director - Telecoms, Informatics and
Media
|
||
14