EXHIBIT 10.1
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Credit Facility Agreement —
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Conditional Amendment
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and Waiver Consent Letter
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To:
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Closed Joint Stock Company “Set
Televissionnykh Stantsiy”
3rd Khoroshevskaya Str. 12
123298 Moscow
Russian Federation
(the “ Borrower ”)
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Fax:
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+ 7 495 797 41 01
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Attention:
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Anatoly Smirnov
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23 April 2009
Dear Sir
US$135,000,000 Facility for Closed Joint Stock
Company “Set Televissionnykh Stantsiy”: Conditional
Amendment and Waiver Consent Letter
1
We refer to:
1.1
the US$135,000,000 facility
agreement dated 27 June 2008 (the “ Facility
Agreement ”) between the Borrower, CTC Media Inc.
(“ CTC Media ”) and the subsidiaries of CTC
Media listed in the Facility Agreement and the subsequent guarantor
accession deed dated 31 October 2008 as guarantors, ABN
AMRO Bank N.V., BNP Paribas, ING Bank N.V., Raiffeisen Zentralbank
Österreich Aktiengesellschaft and ZAO Raiffeisenbank as
mandated lead arrangers, the financial institutions listed in the
Facility Agreement as original lenders and Raiffeisen Zentralbank
Österreich Aktiengesellschaft as facility agent (the “
Agent ”); and
1.2
the amendment and waiver request
letter dated 23 April 2009 addressed to the Agent from the
Borrower (the “ Amendment Request ”).
2
Unless a contrary indication
appears, terms defined and references construed in the Facility
Agreement have the same meaning and construction in this letter,
and clauses, schedules and paragraph references are to be construed
as references to the clauses, schedules and paragraphs of the
Facility Agreement.
3
Under Clause 34.1 ( Required
consents ) and subject to Clause 34.2 ( Exceptions ),
any term of the Finance Documents may be amended or waived with the
consent of the Majority Lenders and the Obligors, and any such
amendment or waiver will be binding on all Parties.
4
This letter confirms that, subject
to:
4.1
each Obligor agreeing to the
amendments set out below and the other terms of this letter by duly
executing and returning to the Agent a copy of this letter;
and
4.2
the Agent receiving payment of the
amendment fee from the Borrower (for the account of the Lenders) in
the amount and at the time agreed in the accompanying amendment fee
letter dated on about the date of this letter (the “
Amendment Fee Letter ”),
the Majority Lenders have consented
in writing to the following amendments to the Facility
Agreement:
A. Paragraph (c) of Clause 20.1 (
Financial condition ) shall be deleted and replaced with the
following language:
(c)
Total Shareholder Equity as at the
last day of any Relevant Period shall not be less than
US$400,000,000; and
B. The following provision shall be inserted as a
new Clause 21.23 ( Restricted payments ):
21.23
Restricted
payments
(a)
During and in respect of CTC
Media’s financial year ending 31 December 2009, CTC
Media shall not:
(i)
declare, pay or make any dividend or
other payment or distribution of any kind on or in respect of any
of its shares; or
(ii)
reduce, return, purchase, repay,
cancel or redeem any of its shares,
(each being a “
Distribution ”).
(b)
During and in respect of CTC
Media’s financial year ending 31 December 2009, each
Obligor shall not (and shall ensure that no other member of the
Group will):
(i)
pay, repay or prepay any principal,
interest or other amount on or in respect of, or redeem, purchase
or defease, any Financial Indebtedness owing to any Restricted
Person;
(ii)
make any investment in, or pay any
fee or make any advance or other kind of payment to, any Restricted
Person; or
(iii)
pay any fee or commission to any
Restricted Person.
(c)
Paragraph (b) above does not
apply to any arrangement or transaction entered into by any member
of the Group in the ordinary course of trading, in the ordinary
course of its banking arrangements or on arm’s length terms.
For the avoidance of doubt, any payment, repayment or prepayment of
any principal, interest or other amount on or in respect of any
Financial Indebtedness that is entered into and incurred on
arm’s length terms by a member of the Group shall be
construed as being conducted in the ordinary course of trading or
in the ordinary course of its banking arrangements.
(d)
For the purposes of this Clause
21.23, “ Restricted Person ” means:
(i)
any Holding Company of CTC
Media;
(ii)
any shareholder (direct or indirect)
of CTC Media, and any other person with an interest (direct or
indirect) in the shares of CTC Media;
(iii)
any joint venture, consortium,
partnership or similar arrangement of which any person described in
paragraphs (i) and (ii) above is a member; and
(iv)
any Affiliate of any person
described in paragraphs (i) and (ii) above (other than a
Subsidiary of CTC Media).
C. Paragraph (b) of Clause 19.2 (
Compliance Certificate ) shall be deleted and replaced with
the following new paragraphs (b) and (c) in Clause 19.2 (
Compliance Certificate ):
(b)
Each Compliance Certificate shall be
signed by any two of the following authorised officers of CTC
Media: the Chief Executive Officer, the Chief Fina
