“20. DTH Subscribers (a) For the purposes of this Paragraph 20, "DTH Subscribers" means subscribers who have contracted, directly or indirectly, with the Company to subscribe to the lowest package of the Company (not including premium channels and HBO) and who are not 90 days or more in default of payments due and payable under such contract. (b) As at the date hereof, there are a total of at least 80,000 DTH Subscribers.”
“Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contact.”
“….the question is what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean.”
“In so far as they are able, the parties shall each provide, and procure that the Company provides, PwC with all information relating to the Company which PwC reasonably requires, including but not limited to all relevant breakdowns and analytical information related to the Net Debt.” (2) Clause 5.3 provided: “The Buyer undertakes to provide full access to the Sellers to all accounting information and documents on the grounds of which the Net Debt review and/or audit pursuant to Clauses 3.4, 3.5 and 3.6 is carried out.”
“…in accordance with article 5.3 of the SPA dated7 October 2009 we require immediate execution of our right of full access to all accounting information and documents on the grounds of which the Net Debt review and/or audit pursuant to Clauses 3.4, 3.5 and 3.6 was carried out. Our representatives will be at [the Company’s] premises today at 2pm. Bulgarian time.”
“…the Buyer had denied her access to the information and documents underlying the Net Debt calculation of PwC as she was not allowed to enter the building of the Company.”
“Mrs Dimitrova said a month ago she had asked for full access to accounting information and such access was refused to her. She said Mrs. Dragica Pilipovic called her in that respect saying she had no right to visit the Company. She further claimed the information the Sellers were provided with at the meetings held on11 December 2009 at 2 p.m. Bulgarian time and on 14 December at 10 a.m. Bulgarian time at the offices of PwC was only limited information originating from the Company. She insisted in addition the Sellers to be provided with access to the method that PwC used in the Net Debt review”
“[the Buyer] trusts PwC and the team of Mrs. Nalbantova without any reserves and that they professionally did their job. It was the right of the Sellers to disagree with the results.”
“When they returned Mrs. Dimitrova said they made an agreement. She said that the points on which they failed to agree were items 2, 4 and 5 in the Buyer’s Net Debt Amount attached to the Buyer’s letter dated1 December 2009 . She said they agreed on all other elements of the Net Debt. Mrs Dimitrova said the Sellers need additional time to review items 2, 4 and 5 of the Buyer’s Net Debt Amount. Mr Tzvetkov explained it was agreed the Sellers to receive extended access to the information necessary to assess items 2, 4 and 5 of the Net Debt calculation in the ITV offices under the supervision of DGKV and PwC. He said the Sellers might take notes but might not take documents out of ITV offices. He said the Parties agreed a conference call on Thursday when would be the deadline for the Sellers to express their position on the Buyer’s Net Debt Amount and whether the Parties may reach an agreement or shall proceed to the arbitrating procedure. He said that it was agreed meanwhile the Parties to start working on the scope of work of the Arbitrating Accounting Firm and to approach the possible Arbitrating Accounting Firms (one of the “big four”).”
“Pls be advised that following the meeting with Elena Illieva Ivanova (principal of CIG) and Tzvetelina Dimitrova (principal of Bikam),…… feel free to provide them and their advisors access to primary financial information as at31 August 2009 which was used for the post closing Net Debt review (including system access). Such access should be given until end of the day Wednesday (Dec-16) and is to take place on the premises of ITV at a time of your convenience and in the presence of a representative of DGKV.”
“…determined pursuant to the procedure set forth in Section 3.4 of the Share Sale Agreement and was communicated by the Buyer to the Sellers by a letter dated1 December 2009 .”
“Repeated representations by the Defendant and PwC acting on behalf of and for the Defendant that: (i) PwC’s Net Debt statement accurately reflected the underlying accounting information and documents; (ii) the data used by PwC had been accurately extracted from [the Company’s] accounting and billing system; (iii) PwC had accurately calculated the figures; and (iv) PwC’s Net Debt Statement was accurate and correct. These representations were also false and incorrect.”
“The implicit representation, to be implied from all the circumstances, including inter alia the statements made and the reassurances given by PwC and the Defendant to the Claimant in the context of the requirements of the SPA (particularly, clause 3.4), that PwC had been supplied with all the necessary accounting information and data needed for it to assess [the Company’s] Net Debt correctly and accurately.”
“[the Buyer] trusts PwC and the team of Mrs. Nalbantova without any reserves and that they professionally did their job. It was the right of the Sellers to disagree with the results.”
“15. Waiver A delay in exercising, or failure to exercise, any right or remedy under this Agreement does not constitute a waiver of such right or remedy or other rights or remedies nor shall either operate so as to bar the exercise or enforcement of such right or remedy.”
“The provisions of Clauses 12 to 16, 19, 20 and 24 to 26 of the [2009 SPA] are hereby incorporated by reference into, and made a part of, this agreement as if fully set forth herein in full, mutatis mutandis.”
“Except as amended in accordance with this agreement, the [2009 SPA] remains unchanged and shall continue in full force and effect, and all references to the [2009 SPA] shall be a reference to such agreement as amended hereby.”