EXHIBIT 10.6
DATED 31 October 1996
DEED OF COUNTER-INDEMNITY
CAPITAL MEDIA (UK) LIMITED (1)
UNIVERSAL INDEPENDENT
HOLDINGS LIMITED (2)
DATE
31 October 1996
PARTIES
(1) CAPITAL MEDIA (UK) LIMITED, a company incorporated in England and Wales
with registered number 3025201, whose registered office is at 25 James
Street, London W1M 5HY (the "Indemnifier"); and
(2) UNIVERSAL INDEPENDENT HOLDINGS LIMITED of PO Box 438 Tropic Isle
Building Wickhams Cay Road Town Tortola British Virgin Islands (the
Beneficiary").
INTRODUCTION
At the request of the Indemnifier, the Beneficiary procured the Bank
Guarantee, but on the condition that the Indemnifier procured the
release of the Beneficiary from the Obligations by June 1996. The
Beneficiary has agreed to continue to maintain the Bank Guarantee and
be liable in respect of the Obligations, subject to the Indemnifier
providing this Counter-Indemnity and supporting security required by
the Beneficiary.
OPERATIVE PROVISIONS
1 DEFINITIONS
The following definitions apply throughout this Counter-Indemnity,
unless the context requires otherwise:
Bank Guarantee the guarantee dated 8
December 1995 from Merrill Lynch in
favour of PTT Telecom BV for an
initial amount of ECU 2,000,000
Deposit any deposit(s) of up to ECU
2,000,000 deposited by the
Beneficiary with Merrill Lynch
acting through any of its branches
worlwide as security for and as a
condition to Merrill Lynch issuing
the Bank Guarantee
Merrill Lynch Merrill Lynch International
Bank Limited
Obligations all monies and liabilities now or at
any time after the date of this
Counter-Indemnity becoming due,
owing, or incurred by the
Beneficiary to Merrill Lynch,
whether pursuant to an indemnity,
guarantee or otherwise, whether
actual or contingent, present or
future, in connection with the
Beneficiary procuring the Bank
Guarantee, including without
prejudice to the generality of the
foregoing, the loss of all or any
part of the Deposit as a result of
Merrill Lynch making a payment under
the Bank Guarantee
Stipulated Rate in relation to any sum not paid
when due, or (in the case of sums
payable on demand) when demanded,
the rate per annum which is two per
cent (2%) above the base rate of
Barclays Bank PLC from time to time
calculated on a day to day basis
including the date of default but
excluding the date of payment
Taxes includes all present and future
income and other taxes, deductions
and withholdings whatsoever,
together with interest and penalties
thereon
2 INTERPRETATION
2.1 The headings in this Counter-Indemnity are for convenience and are to
be ignored in construing this Counter-Indemnity.
2.2 Words importing the singular include the plural, and vice versa.
2.3 References to laws and regulations include amendments and
re-enactments.
2.4 References in this Counter-Indemnity to it or another document shall be
construed as a reference to this Counter-Indemnity, or the other
document, as from time to time novated, amended, varied or
supplemented.
3 INDEMNITY AND FEES
3.1 In consideration of the Beneficiary procuring the Bank Guarantee and
continuing to maintain the Bank Guarantee at the request of the
Indemnifier, the Indemnifier shall indemnify the Beneficiary and keep
the Beneficiary indemnified against all demands, claims, liabilities,
losses, costs and expenses whatsoever (including the loss of any part
of any Deposit and all legal and other costs, charges and expenses the
Beneficiary may incur in connection with the Obligations, or in
enforcing, or attempting to enforce, the Beneficiary's rights under
this Counter-Indemnity) arising in relation to or out of, or as the
result of the Beneficiary having undertaken the Obligations and/or
procuring the Bank Guarantee.
3.2 The Indemnifier irrevocably authorise the Beneficiary to make any
payments or comply with any demands which appear or purport to be
claimed or made by Merrill Lynch in connection with the Bank Guarantee
and/or in respect of the Obligations, without any reference to or
further authority from the Indemnifier, without enquiry into the
justification therefor or the validity, genuineness or accuracy of any
statement or certificate received by the Beneficiary with respect to or
under the Bank Guarantee and/or the Obligations and despite any
contestation on the part of the Indemnifier, and the Indemnifier agrees
that any such claim or demand shall be binding on the Indemnifier and
shall, as between the Indemnifier and the Beneficiary be accepted by
the Indemnifier as conclusive evidence that the Beneficiary was liable
to pay or comply with the same.
3.3. The liabilities and obligations of the Indemnifier under this
Counter-Indemnity shall remain in force notwithstanding any act,
omission, event or matter whatsoever, except subject to clause 3.4, an
absolute discharge or release of the Indemnifier signed by the
Beneficiary.
3.4 Any discharge, release, composition or arrangement which the
Indemnifier may effect with the Beneficiary shall be deemed to be made
subject to the condition that it will be void if payment or security
which the Beneficiary may previously have
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received or may later receive under this Counter-Indemnity is set
aside under any applicable law or proves to have been for any reason
invalid.
3.5 Without prejudice to clauses 3.3 and 3.4, none of the liabilities or
obligations of the Indemnifier under this Counter-Indemnity shall be
impaired by:-
(a) the Indemnifier or the Beneficiary granting any time or any
indulgence whatsoever or making any settlement, composition or
arrangement with Merrill Lynch or any other person;
(b) the Indemnifier or the Beneficiary asserting, failing or
neglecting to assert or delaying in asserting, or waiving any
of their rights or remedies arising under the Bank Guarantee,
this Counter-Indemnity, in respect of the Obligations or
otherwise;
(c) the Beneficiary, with or without the Indemnifier's consent,
making any variation to the Bank Guarantee, the terms of the
Deposit or any Obligations.
3.6 On or before 31 December 1997, the Indemnifier shall procure that all
the Obligations shall be released and the Deposit released to the
Beneficiary. This Counter-Indemnity shall remain in force
notwithstanding compliance by the Indemnifier with the terms of this
clause 3.6.
4 PAYMENTS
4.1 All payments to be made by the Indemnifier under this Deed shall be
made to the Beneficiary:
(a) in cleared funds in the currency or currencies in which the
Obligations are from time to time denominated;
(b) without set-off or counterclaim and free and clear of any
Taxes and without any deduction or withholding whatsoever,
except any deduction or withholding which is required by law;
and
(c) to such account and otherwise in such manner as the
Beneficiary may require.
4.2 If any such payment is subject to any Taxes or other deduction or
withholding the Indemnifier shall pay to the Beneficiary such
additional amounts as the Beneficiary may certify as necessary to
enable the Beneficiary to receive a net amount, after payment of such
Taxes or other deduction or withholding, equal to the full amount which
the Beneficiary would have received had such payment not been subject
to such Taxes or other deduction or withholding.
4.3 The Indemnifier shall within (30) thirty days provide the Beneficiary
with evidence and other appropriate documentation of payment of any
Taxes.
4.4 If the Indemnifier fails to pay any amount to the Beneficiary upon
demand in accordance with clause 3.1, the Indemnifier shall pay
interest on the amount from time of the demand up to the time of actual
payment (as well after as before judgement) at the Stipulated Rate.
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5 RIGHTS CUMULATIVE, WAIVER
5.1 The rights of the Beneficiary under this Counter-Indemnity:
(a) are cumulative and are in addition to their rights under the
general law;
(b) may be exercised as often as they consider appropriate; and
(c) may be waived only expressly in writing.
5.2 Any failure or delay in the exercise of any such rights shall not be
treated as a waiver.
6 SEVERANCE
Each of the provisions of this Counter-Indemnity is severable and
distinct from the others. If one or more provision is or becomes
invalid, illegal or unenforceable, then this shall not affect the
validity, legality and enforceability of the remaining provisions.
7 ASSIGNMENT
7.1 This Deed shall be binding upon the Indemnifier and its successors and
assigns and enure to the benefit of the Beneficiary and its successors
and assigns, but the Indemnifier may not assign all or any of its
rights under this Counter-Indemnity.
7.2 The Beneficiary may assign all or any of its rights under this
Counter-Indemnity to any person.
7.3 The Beneficiary are hereby authorised to disclose to any proposed
assignee, transferee or sub-participant such information in their
possession concerning the Indemnifier as the Beneficiary deems fit.
8 COMMUNICATIONS
8.1 Any demand, consent, record, election, certificate or notice required
or permitted to be given under this Counter-Indemnity shall be in
writing and sent by registered or recorded delivery post or facsimile,
or delivered by hand, addressed to the relevant party at the address or
the facsimile number set out in this Counter-Indemnity or in either
case to such other person or address or facsimile number as any party
shall by not less than five (5) business days' written notice have
advised the others in writing. Any such demand, consent, record,
election, certificate or notice shall be deemed (if given as aforesaid)
to have been received by the party to whom it is addressed:
(a) two (2) business days after posting in the case of despatch by
post as aforesaid; or
(b) if sent by facsimile, on the business day on which it was
transmitted if transmission takes place during normal business
hours otherwise it is deemed to be received when normal
business hours next commence; or
(c) on delivery if delivered by hand.
8.2 In this Clause:
(a) "normal business hours" are 9.30 am to 5.30 pm on a business
day; and
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(b) "business days" are days (not being Saturdays or Sundays or
public holidays) on which banks are open for business in
London.
9 GOVERNING LAW
This Deed shall be governed by and construed in accordance with English
law, and the parties irrevocably submit to the exclusive jurisdiction
of the English courts.
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ATTESTATIONS
EXECUTED and DELIVERED as a Deed )
by CAPITAL MEDIA (UK) LIMITED )
acting by two directors/a director )
and its secretary: )
Director /s/ BARRY LLEWELLYN
-----------------------
Director/Secretary /s/ CHARLES KOPPEL
EXECUTED as a Deed on behalf of )
UNIVERSAL INDEPENDENT )
HOLDINGS LIMITED incorporated in )
the British Virgin Islands )
by ) /s/
and ) /s/
being a person/persons who in )
accordance with the laws of that )
territory is/are empowered to sign the )
document on behalf of the Company )
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