Exhibit 10.11
SECURITY
ASSIGNMENT
between
CME MEDIA ENTERPRISES
B.V.
and
CENTRAL EUROPEAN MEDIA
ENTERPRISES LTD.
and
THE BANK OF NEW YORK
MELLON
acting through its London
Branch
and
THE LAW DEBENTURE TRUST
CORPORATION p.l.c.
Dated 17 September
2009
THIS
SECURITY ASSIGNMENT (the
" Assignment ") is dated made on the 17 th of September 2009
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CME MEDIA
ENTERPRISES B.V., a
company organized under the laws of the Netherlands, and having its
registered office at Dam 5B, 1012 JS Amsterdam, the Netherlands ("
CME ME ");
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CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD., a company incorporated under the laws of
Bermuda, and having its registered office at
Clarendon House, 2 Church Street, Hamilton, HM 11 Bermuda (" CME
Ltd "); and
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THE BANK OF
NEW YORK MELLON, a
company incorporated under the laws of the State of New York, USA,
acting through its London Branch , which is at One Canada
Square, London E14 5AL (the “2009 Note
Trustee”); and
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THE LAW
DEBENTURE TRUST CORPORATION p.l.c., a company incorporated under the laws of the
England and having its registered office at Fifth Floor,
100 Wood Street, London EC2V 7EX ( the " Assignee
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Each a "
Party " and collectively referred to as the " Parties
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Each Assignor
(as such term is defined below) is entering into this Assignment in
connection with the Indenture (as such term is defined
below):
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(B)
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The Assignee
and each Assignor intend this document to take effect as a deed
(even though a Party may only execute it under hand).
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Capitalized
terms not otherwise defined herein shall, unless the context
requires otherwise, bear the meaning ascribed thereto in the
Indenture:
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" Assigned
Contract "
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means the
Framework Agreement, as amended or supplemented from time to
time;
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" Assigned
Rights "
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means all present and future rights, title and
interest of each Assignor in, under and to the Framework Agreement
including, without limitation, the right of each Assignor to
receive all amounts payable under the Framework Agreement and all
present and future claims, causes of action, payments and proceeds
in respect thereof, whether now or in the future;
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"
Assignors "
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means CME ME
and CME Ltd and " Assignor " means, as appropriate, CME ME
or CME Ltd;
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" Business
Day "
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means, in
respect of any day, a day on which banks are generally open for
transactions in London and New York;
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" Election
Notice "
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has the meaning
given in Schedule 1 hereto;
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has the meaning given in the
Indenture;
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means the Indenture and the Security
Documents;
means the Framework Agreement among CME ME, CME
Ltd and PPF dated December 13, 2004 as amended on May 2,
2005;
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means the
Indenture dated on or about the date hereof between CME Ltd.,
Central European Media Enterprises NV, CME ME, the 2009 Note
Trustee and the Assignee;
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“Original Contract
Assignments”
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means the
Security Assignment dated May 5, 2005 between the Assignors and
JPMorgan Chase Bank, NA, London Branch, the Security Assignments
dated May 16, 2007 between the Assignors and BNY Corporate Trustee
Services Limited and The Bank of New York and the
Security Assignments dated March 10, 2008 between the Assignors and
the Bank of New York ;
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means JR
Holdings Limited (formerly known as PPF (Cyprus) Limited), a
company organized under the laws of the Republic of Cyprus with
registered number HE 92433, and having its registered office at
Arch. Makariou III, 2-4, Capital Center, 9th Floor, PC 1505,
Nicosia, Cyprus. The name of the company was changed from PPF
(Cyprus) Limited on March 1, 2006;
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means the
Assignments dated July 21, 2006 and August 22, 2007 between the
Assignors and European Bank for Reconstruction and
Development;
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has the meaning
given in Clause 8 hereof;
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means all
present and future moneys, debts and liabilities due, owing or
incurred by the Assignors to the 2009 Note
Trustee or the Assignee under or in connection with the
Financing Agreements (in each case, whether alone or jointly, or
jointly and severally, with any other person, whether actually or
contingently and whether as principal, surety or
otherwise);
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means the
Assigned Rights, being the assets the subject of the security
created hereunder;
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has the meaning
given in the Indenture;
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means any
mortgage, pledge, lien, charge, assignment, hypothecation or
security interest or any other agreement or arrangement having the
effect of conferring security; and
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means in
respect of the Security Assets, the period beginning on the date
hereof and ending on the date upon which all the Secured
Liabilities which have arisen have been unconditionally and
irrevocably paid and discharged in full or the security created
hereby has been unconditionally and irrevocably released and
discharged.
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In construing
this Assignment, unless otherwise specified:
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references to a
"person" shall mean any individual, firm, company, government,
state or agency of a state, local or municipal authority, or any
joint venture association or partnership (whether or not having
separate legal personality),
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references to
this Assignment, the other Financing Agreements or any other
document referred to herein is a reference to this Assignment, the
other Financing Agreements or such other document as amended,
varied, novated or supplemented at any time,
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references to
Clause and Schedule headings are for ease of reference
only
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any reference
to the "Assignee" or the "Assignor" shall include its and any
subsequent successors and any permitted transferees in accordance
with their respective interests; and
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an amount shall
be considered to be "irrevocably paid" if it is not capable of
being avoided or reduced by virtue of any bankruptcy, insolvency,
liquidation or similar laws.
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A person who is
not a party to this Assignment has no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of this
Assignment.
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As a continuing
security for the payment, discharge and performance of all the
Secured Liabilities, at any time owed or due to the 2009 Note
Trustee or the Assignee, each Assignor unconditionally and
irrevocably assigns and agrees to assign absolutely with full title
guarantee (save for those security interests created by the
Original Contract Assignments and the Prior Assignments), its
rights, title and interest in respect of the Security Assets to and
in favour of the Assignee;
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provided that
forthwith upon the expiry of the Security Period, the Assignee
shall, at the request and expense of the Assignors, (without
warranty or other liability) re-assign to each Assignor the items
assigned by such Assignor pursuant to this Clause 2
(Assignment).
It is the
intention of CME Ltd on or about the date hereof to repay the loan
which is secured inter alia by the Prior
Assignments. By a Global Deed of Release made on or
before the date hereof, EBRD has agreed to release the Prior
Assignments upon repayment of such loan and upon such release the
first paragraph of this sub-clause (a) shall be read and construed
as if the words “and the Prior Assignments” were
deleted and Clause 5(a) shall be read and construed as if the words
“or the Prior Assignments” were deleted.
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The Assignors
and the Assignee shall forthwith give notice of the assignment, to
be effected in accordance with Clause 2(a), of the Assignors’
rights, title and interest in and to the Security Assets
by:
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sending a
notice of assignment to PPF substantially in the form set out in
Schedule 1 with such amendments as the Assignee may agree;
and
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the Assignors
using their best endeavours to procure that PPF acknowledges the
notice of assignment substantially in the form set out in Schedule
2 with such amendments as the Assignee may agree.
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(c)
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Each Assignor
shall promptly execute all documents and do all things and take
whatever action the Assignee (acting on the instructions of the
2009 Note Trustee) or a Receiver may reasonably require
to:
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perfect or
protect the Security Interest created by this Assignment;
and
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facilitate the
realization of any Security Asset or the exercise of any right,
power or discretion exercisable by the Assignee or any Receiver or
any of its or their delegates or sub-delegates in respect of any
Security Asset;
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including,
without limitation, the execution of any transfer, conveyance,
assignment or assurance of any property whether to the Assignee or
to its nominees, and the giving of any notice, order, or direction
and the making of any registration, which in any case, the Assignee
(acting on the instructions of the 2009 Note Trustee) may think
expedient.
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(d)
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Notwithstanding
anything contained herein:
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the Assignors
shall remain liable under the Assigned Contract to perform all the
obligations assumed by them thereunder; and
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the Assignee
shall not be under any obligations or liability under the Assigned
Contract, other than in connection with exercising its rights
thereunder or be liable to make any payment thereunder.
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(e)
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The Parties
agree that at any time other than when an Event of Default has
occurred and is continuing, the Assignors shall be permitted to
exercise each of the Assigned Rights without
restriction.
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3.
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Preservation Of
Security
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The security
constituted by this Assignment is continuing up to and including
the last day of the Security Period.
The security
constituted by this Assignment is in addition to and is not in any
way prejudiced by any other security now or subsequently held by
the Assignee for any Secured Liability.
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Representations And
Warranties
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Representations and warranties
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Each Assignor
makes on the date hereof the representations and warranties set out
in this Clause 4 to the Assignee.
It has the
power to enter into and perform, and has taken all necessary action
to authorise the entry into, performance and delivery of, this
Assignment and the transactions contemplated by this
Assignment.
This Assignment
constitutes, or when executed in accordance with its terms will
constitute, its legal, valid and binding obligation enforceable in
accordance with its terms and as at the date of this Assignment,
neither Assignor is in material breach of the Assigned
Contract.
To the best of
its knowledge and belief all authorisations required or advisable
in connection with the entry into, performance, validity and
enforceability of this Assignment have been obtained or effected
and are in full force and effect.
The entry into
and performance by it of this Assignment do not and will
not:
(a) conflict
with any law or regulation or judicial or official
order;
(b)
conflict with its constitutional documents; or
(c)
conflict with any document which is binding upon
it or its assets.
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Encumbrances And
Disposals
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Save for those
security interests, assignments or transfers which are already
created and existing, each Assignor undertakes with the Assignee
that on and from the date hereof and until the end of the Security
Period, it will not (except with the prior written consent of the
Assignee or as otherwise permitted pursuant to the
Indenture):
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create or
permit to subsist any Security Interest upon all or any part of the
Security Assets other than the security created hereunder or under
the Original Contract Assignments or the Prior
Assignments; or
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assign,
transfer or otherwise dispose of the Assigned Contract except in
circumstances contemplated in the Assigned Contract.
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Each Assignor
undertakes to the Assignee that until the end of the Security
Period (except with the prior written consent of the Assignee or as
otherwise permitted pursuant to the Indenture):
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it shall not do
or permit to be done anything which would materially prejudice the
rights of the Assignee in the Security Assets (except as expressly
contemplated in the Assigned Contract); and
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it shall not
vary or amend any
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