Exhibit 10.5
EXECUTION VERSION
DEED OF AMENDMENT
relating to an Intercreditor Agreement dated 21 July 2006,
as amended and restated by a Deed of Amendment dated 16 May 2007,
by a Deed of Amendment dated 22 August 2007,
by a Deed of Amendment dated 10 March 2008,
by a Deed of Amendment dated 17 September 2009,
by a Deed of Amendment dated 29 September 2009,
by a Deed of Amendment dated 21 October 2010,
by a Deed of Amendment dated February 18, 2011, and
by a Deed of Amendment dated October 8, 2012.
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD.,
CENTRAL EUROPEAN MEDIA ENTERPRISES N.V. and
CME MEDIA ENTERPRISES B.V.
as Obligors;
THE BANK OF NEW YORK MELLON
(formerly THE BANK OF NEW YORK)
as 2008 Trustee;
THE BANK OF NEW YORK MELLON,
acting through its London Branch
as 2009 Note Trustee;
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
as 2009 Security Trustee;
CITIBANK, N.A., LONDON BRANCH
as 2010 Notes Trustee;
BNP PARIBAS TRUST CORPORATION UK LIMITED
as 2010 Security Trustee;
DEUTSCHE BANK TRUST COMPANY AMERICAS
as 2011 Trustee;
TIME WARNER INC.
as 2014 Term Loan Agent;
TIME WARNER INC.
as 2014 RCF Agent;
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
as 2014 Trustee
CONTENTS
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1. | DEFINITIONS AND INTERPRETATION |
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2. | RESTATEMENT OF THE ORIGINAL AGREEMENT |
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3. | FURTHER ASSURANCE |
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4. | MISCELLANEOUS |
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5. | GOVERNING LAW |
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SCHEDULE 1 RESTATED AGREEMENT |
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THIS DEED is dated 2 May 2014 and made between:
(A) CENTRAL EUROPEAN MEDIA ENTERPRISES LTD., a company established under the laws of Bermuda (the “Company”);
(B) CENTRAL EUROPEAN MEDIA ENTERPRISES N.V. a company established under the laws of Curaçao (“CME N.V.”);
(C) CME MEDIA ENTERPRISES B.V. a company established under the laws of the Netherlands (“CME B.V.”);
(D) THE BANK OF NEW YORK MELLON (formerly THE BANK OF NEW YORK) (acting in its capacity as Trustee and Security Trustee under the 2008 Indenture) (the “2008 Trustee”);
(E) THE BANK OF NEW YORK MELLON, acting through its London branch (acting in its capacity as Note Trustee under the 2009 Indenture (the “2009 Note Trustee”);
(F) THE LAW DEBENTURE TRUST CORPORATION p.l.c. (acting in its capacity as Security Trustee under the 2009 Indenture (the “2009 Security Trustee”);
(G) CITIBANK, N.A., LONDON BRANCH, (acting in its capacity as Trustee under the 2010 Indenture) (the “2010 Notes Trustee”);
(H) BNP PARIBAS TRUST CORPORATION UK LIMITED (acting in its capacity as Security Trustee in respect of the 2010 Indenture) (the “2010 Security Trustee”);
(I) DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation (acting in its capacity as Trustee and Security Agent under the 2011 Indenture) (the “2011 Trustee”);
(J) TIME WARNER INC. (acting in its capacity as Security Agent under the 2014 Term Loan) (the “2014 Term Loan Agent”);
(K) TIME WARNER INC. (acting in its capacity as Security Agent under the 2014 RCF) (the “2014 RCF Agent”); and
(L) DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation (acting in its capacity as Trustee and Security Agent under the 2014 Indenture) (the “2014 Trustee”).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Deed:
“2008 Indenture” means an Indenture dated as of 10 March 2008, between, amongst others, the Company, CME N.V., CME B.V., the 2008 Trustee, The Bank of New York Mellon (formerly The Bank of New York) as Transfer Agent, Principal Paying Agent, and Conversion Agent.
“2009 Indenture” means an Indenture dated as of 17 September 2009, between, amongst others, the Company, CME N.V., CME B.V., the 2009 Note Trustee, the 2009 Security Trustee, The Bank of New York Mellon, acting through its London Branch as Transfer Agent and Principal Paying Agent and The Bank of New York Mellon (Luxembourg) S.A. as Registrar, Transfer Agent and Paying Agent.
“2010 Indenture” means an Indenture dated as of 21 October 2010, between, amongst others, CET 21 spol. s r.o. , the 2010 Notes Trustee, Citibank, N.A., London Branch as Transfer Agent and Paying Agent and Citigroup Global Markets Deutschland AG as Registrar.
“2011 Indenture” means an Indenture dated as of 18 February 2011, between, amongst others, the Company, CME N.V., CME B.V. and the 2011 Trustee, as Trustee, Security Agent, Paying Agent, Conversion Agent, Transfer Agent and Registrar.
“2014 RCF” means a Revolving Loan Facility Credit Agreement dated, as of 2 May 2014, amongst the Company, the Lenders party thereto, and Time Warner Inc., as Administrative Agent.
“2014 Term Loan” means a Term Loan Facility Credit Agreement, dated as of February 28, 2014, amongst the Company, the Lenders party thereto, and Time Warner Inc., as Administrative Agent.
“2014 Indenture” means an Indenture dated as of 2 May 2014, amongst the Company, CME N.V., CME B.V. and the 2014 Trustee, as Trustee, Paying Agent, Transfer Agent, Registrar and the Security Agent.
“Obligors” means the Company, CME N.V. and CME B.V.
“Original Agreement” means the Intercreditor Agreement dated 21 July 2006, between the Obligors, The Bank of New York Mellon (formerly JPMorgan Chase Bank, N.A., London Branch) as Trustee and Security Trustee, and the European Bank for Reconstruction and Development, as amended and restated by a Deed of Amendment dated 16 May 2007, by a Deed of Amendment dated 22 August 2007, by a Deed of Amendment dated 10 March 2008, by a Deed of Amendment dated 17 September 2009, by a Deed of Amendment dated 29 September 2009, by a Deed of Amendment dated 21 October 2010, by a Deed of Amendment dated 18 February 2011 and as further amended and restated by a Deed of Amendment dated 8 October 2012.
“Restated Agreement” means the Original Agreement, as amended and restated by this Deed, and the terms of which are set out in Schedule 1 (Restated Agreement).
1.2 Incorporation of defined terms
(a) Unless a contrary indication appears, a term defined in the form of Restated Agreement attached as Schedule 1 to this Deed has the same meaning in this Deed.
(b) The principles of construction set out in the form of Restated Agreement attached as Schedule 1 to this Deed shall have effect as if set out in this Deed.
1.3 Clauses
In this Deed any reference to a “Clause” or a “Schedule” is, unless the context otherwise requires, a reference to a Clause or a Schedule to this Deed.
2. RESTATEMENT OF THE ORIGINAL AGREEMENT
With effect from the date of this Deed, the Original Agreement shall be amended and restated in the form set out in Schedule 1 (Restated Agreement).
3. FURTHER ASSURANCE
The Company shall ensure that each Obligor shall, at the request of the 2008 Trustee, the 2009 Security Trustee (acting on the instructions of the 2009 Note Trustee), the 2010 Security Trustee (acting on the instructions of the 2010 Notes Trustee), the 2011 Trustee, the 2014 Term Loan Agent (acting on the instructions of the administrative agent or majority lenders under the 2014 Term Loan), the 2014 RCF Agent (acting on the instructions of the administrative agent or majority lenders under the 2014 RCF) and the 2014 Trustee, and, at its own expense, do all such acts and things necessary or desirable to give effect to the amendments effected or to be effected pursuant to this Deed.
4. MISCELLANEOUS
4.1 Incorporation of terms
The provisions of Article 4.02 (Entire Agreement; Amendment and Waiver), Article 4.03 (Notices), Article 4.04 (Governing Law and Arbitration) sub-paragraph (b), and Article 4.05 (Successors and Assigns; Third Party Rights) of the Restated Agreement shall be incorporated into this Deed as if set out in full in this Deed and as if references in those clauses to “this Agreement” are references to this Deed.
4.2 Counterparts
This Deed may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Deed.
5. GOVERNING LAW
This Deed and any non-contractual obligations arising out of or in connection with it shall be governed and construed in accordance with English law.
This Deed has been entered into on the date stated at the beginning of this Deed.
SCHEDULE 1
RESTATED AGREEMENT
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IN WITNESS WHEREOF, the parties hereto, acting through their duly authorised representatives, have caused this Deed to be executed and delivered as a Deed on the date first above written.
THE OBLIGORS
EXECUTED and DELIVERED as a DEED
for and on behalf of
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD.
By: | /s/ David Sturgeon |
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Name: | David Sturgeon |
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Title: | acting Chief Financial Officer |
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Address: | O’Hara House, 3 Bermudiana Road, Hamilton, Bermuda |
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Facsimile: | +1 441 295 0992 |
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Attention: | Assistant Secretary |
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With a copy to: |
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Address: | CME Media Services Limited |
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| Krizeneckeho nam. 1078/5a |
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| Prague 5, 152 00, Czech Republic |
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Facsimile: | +420 242 464 483 |
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Attention: | Legal Department |
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EXECUTED and DELIVERED as a DEED
for and on behalf of
CENTRAL EUROPEAN MEDIA ENTERPRISES N.V.
By: | /s/ Daniel Penn |
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Name: | Daniel Penn |
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Title: | Managing Director |
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Address: | Schottegatweg Oost 44, Willemstad, Curaçao |
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Facsimile: | + 599 9 732 2500 |
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Attention: | Managing Director |
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With a copy to: |
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Address: | CME Media Services Limited |
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| Krizeneckeho nam. 1078/5a |
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| Prague 5, 152 00, Czech Republic |
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Facsimile: | +420 242 464 483 |
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Attention: | Legal Department |
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EXECUTED and DELIVERED as a DEED
for and on behalf of
CME MEDIA ENTERPRISES B.V.
By: | /s/ David Sturgeon |
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Name: | David Sturgeon |
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Title: | Managing Director |
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Address: | Dam 5B, 1012 JS Amsterdam, The Netherlands |
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Facsimile: | +312 042 31404 |
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Attention: | Managing Director |
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With a copy to: |
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Address: | CME Media Services Limited |
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| Krizeneckeho nam. 1078/5a |
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| Prague 5, 152 00, Czech Republic |
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Facsimile: | +420 242 464 483 |
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Attention: | Legal Department |
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The 2008 Trustee
EXECUTED and DELIVERED as a DEED
for and on behalf of
THE BANK OF NEW YORK MELLON
By: | /s/ Melissa Laidley |
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Name: | Melissa Laidley |
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Title: | Vice President |
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By: | /s/ Marco Thuo |
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Name: | Marco Thuo |
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Title: | Vice President |
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in the presence of: | /s/ Maria Bertolin |
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Address: | One Canada Square |
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| London E14 5AL |
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| United Kingdom |
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Facsimile: | +44 20 7964 2536 |
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Attention: | Corporate Trust Services |
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The 2009 Note Trustee
EXECUTED and DELIVERED as a DEED
for and on behalf of
THE BANK OF NEW YORK MELLON
By: | /s/ Melissa Laidley |
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Name: | Melissa Laidley |
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Title: | Vice President |
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By: | /s/ Marco Thuo |
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Name: | Marco Thuo |
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Title: | Vice President |
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in the presence of: | /s/ Maria Bertolin |
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Address: | One Canada Square |
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| London E14 5AL |
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| United Kingdom |
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Facsimile: | +44 20 7964 2536 |
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Attention: | Corporate Trust Services |
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The 2009 Security Trustee
EXECUTED and DELIVERED as a DEED
for and on behalf of
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
By: | /s/ Julian Mason Jebb |
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Name: | Julian Mason Jebb |
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Title: | Director |
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By: | /s/ Chris Burgess |
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Name: | Chris Burgess |
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Title: | Secretary, Representing Law Debenture Corporate Services Ltd |
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Address: | Fifth floor |
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| 100 Wood Street |
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| London EC2V 7EX |
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Facsimile: | +44 -20-7606-0643 |
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Attention: | The Manager, Commercial Trusts |
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The 2010 Notes Trustee
EXECUTED and DELIVERED as a DEED
for and on behalf of
CITIBANK, N.A., LONDON BRANCH
By: | /s/ Andrew McIntosh |
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Name: | Andrew McIntosh |
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Title: | Vice President |
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Address: | 13th Floor |
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| Canada Square, Canary Wharf |
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| London E14 5LB |
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Facsimile: | +44 20 7500 5877 |
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Attention: | Agency & Trust |
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The 2010 Security Trustee
EXECUTED and DELIVERED as a DEED
for and on behalf of
BNP PARIBAS TRUST CORPORATION UK LIMITED
By: | /s/ Andrew Brown |
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Name: | Andrew Brown |
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Title: | Authorized Signatory |
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in the presence of: | /s/ Maria Dawson |
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Address: | 55 Moorgate, London, EC2R 6PA |
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Fax: | +44 20 7595 5078 |
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Attention: | The Directors |
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The 2011 Trustee
EXECUTED and DELIVERED as a DEED
for and on behalf of
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: | Deutsche Bank National Trust Company |
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| /s/ Rodney Gaughan |
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Name: | Rodney Gaughan |
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Title: | Vice President |
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| /s/ Robert S. Peschler |
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Name: | Robert Peschler |
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Title: | Vice President |
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in the presence of: | /s/ Linda Reale |
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Address: | Deutsche Bank Trust Company Americas |
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| Trust & Agency Services |
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| 60 Wall Street, 16th Floor MS NYC60-1630 |
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| New York, New York 10005 |
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| U.S.A. |
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Facsimile: | + 732 578 4635 |
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Attention: | Corporates Team Deal Manager – Central European Media Enterprises Ltd. | |
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with a copy to: |
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Address: | Deutsche Bank Trust Company Americas |
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| c/o Deutsche Bank National Trust Company |
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| Trust & Securities Services |
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| 100 Plaza One, 6th Floor Mailstop JCY03-0699 |
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| Jersey City, New Jersey 07311 |
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| U.S.A. |
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Facsimile: | + 732 578 4635 |
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Attention: | Corporates Team Deal Manager – Central European Media Enterprises Ltd. | |
The 2014 Term Loan Agent
EXECUTED and DELIVERED as a DEED
for and on behalf of
TIME WARNER INC.
By: | /s/ Edward B. Ruggiero |
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Name: | Edward B. Ruggiero |
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Title: | Senior Vice President & Treasurer |
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By: | /s/ Stephen N. Kapner |
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Name: | Stephen N. Kapner |
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Title: | Vice President & Assistant Treasurer |
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in the presence of: | /s/ Lisa Reinhardt |
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Address: | One Time Warner Center |
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| New York, New York 10019 |
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Facsimile: | (212) 484-7151 |
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Attention: | Treasurer |
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The 2014 RCF Agent
EXECUTED and DELIVERED as a DEED
for and on behalf of
TIME WARNER INC.
By: | /s/ Edward B. Ruggiero |
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Name: | Edward B. Ruggiero |
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Title: | Senior Vice President & Treasurer |
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By: | /s/ Stephen N. Kapner |
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Name: | Stephen N. Kapner |
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Title: | Vice President & Assistant Treasurer |
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in the presence of: | /s/ Lisa Reinhardt |
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Address: | One Time Warner Center |
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| New York, New York 10019 |
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Facsimile: | (212) 484-7151 |
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Attention: | Treasurer |
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The 2014 Trustee
EXECUTED and DELIVERED as a DEED
for and on behalf of
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: | Deutsche Bank National Trust Company |
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| /s/ Rodney Gaughan |
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Name: | Rodney Gaughan |
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Title: | Vice President |
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| /s/ Robert S. Peschler |
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Name: | Robert Peschler |
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Title: | Vice President |
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in the presence of: |
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Address: | Deutsche Bank Trust Company Americas |
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| Trust & Agency Services |
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| 60 Wall Street, 16th Floor MS NYC60-1630 |
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| New York, New York 10005 |
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| U.S.A. |
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Facsimile: | + 732 578 4635 |
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Attention: | Corporates Team Deal Manager – Central European Media Enterprises Ltd. | |
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with a copy to: |
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Address: | Deutsche Bank Trust Company Americas |
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| c/o Deutsche Bank National Trust Company |
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| Trust & Securities Services |
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| 100 Plaza One, 6th Floor Mailstop JCY03-0699 |
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| Jersey City, New Jersey 07311 |
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| U.S.A. |
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Facsimile: | + 732 578 4635 |
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Attention: | Corporates Team Deal Manager – Central European Media Enterprises Ltd. | |