Exhibit 10.A
SCHEDULE
to the Master Agreement
dated as of 29 November 2002
between
CREDIT AGRICOLE LAZARD and FLOSCULE B.V.
FINANCIAL PRODUCTS BANK, Parnassustoren
a company incorporated with unlimited Locatellikade 1
liability under the laws of England 1076 AZ Amsterdam
The Netherlands
("PARTY A") ("PARTY B")
PART 1
TERMINATION PROVISIONS
In this Agreement:-
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of:-
Section 5(a)(v), NONE
Section 5(a)(vi), NONE
Section 5(a)(vii), NONE
Section 5(b)(iv), NONE
and in relation to Party B for the purpose of:-
Section 5(a)(v), Xxxxxx Investissement and Trief
Corporation S.A.
Section 5(a)(vi), Xxxxxx Investissement and Trief
Corporation S.A.
Section 5(a)(vii), Xxxxxx Investissement and Trief
Corporation S.A.
Section 5(b)(iv), Xxxxxx Investissement and Trief
Corporation S.A.
(b) "SPECIFIED TRANSACTION" will have the meaning set out in Section 14 of
this Agreement.
(c) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will apply to both
parties.
If such provisions apply:-
"SPECIFIED INDEBTEDNESS" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect
of borrowed money.
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"THRESHOLD AMOUNT" means:-
(i) with respect to Party A, United States Dollars Ten Million
(US$10,000,000); and
(ii) with respect to Party B and Trief Corporation S.A., United States
Dollars One Million (US$1,000,000); and with respect to Xxxxxx
Investissement, the higher of US$15 million and 3% of shareholders'
equity;
(d) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) will apply
to Party A and will apply to Party B, amended as follows:
"'CREDIT EVENT UPON MERGER" shall mean that a Designated Event (as defined
below) occurs with respect to a party, any Credit Support Provider of the
party or any applicable Specified Entity (any such party or entity, "X"),
and such Designated Event does not constitute an event described in
Section 5(a)(viii) but the creditworthiness of X, or, if applicable, the
successor, surviving or transferee entity of X, is materially weaker than
that of X immediately prior to the occurrence of such Designated Event
(and, in any such event, such party or its successor, surviving or
transferee entity, as appropriate, will be the Affected Party). For
purposes hereof, a "Designated Event" with respect to X means that:
(i) X consolidates, amalgamates with or merges with or into, or
transfers all or substantially all its assets to, or receives all
or substantially all the obligations of, another entity; or
(ii) any person or entity (or any group of persons or entities acting in
concert) acquires directly or indirectly the beneficial ownership
of equity securities having the power to elect a majority of the
board of directors of X or otherwise acquires directly or
indirectly the power to control the policy-making decisions of X."
Notwithstanding any other provision of this Agreement, it is agreed that
the proposed demerger (juridische splitsing) of Party B and the obtaining
of ultimate control of Jactmac Media B.V., the successor by demerger to
Party B, by a trust for the benefit of Xxxx X. XxxXxxx and his children
shall not be deemed to be a Tax Event, a Tax Event Upon Merger or a Credit
Event Upon Merger and shall not be deemed to constitute an Event of
Default under Section 5(a)(viii) of the Agreement.
(e) THE "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not apply
to Party A and will not apply to Party B.
"PAYMENTS ON EARLY TERMINATION". For the purpose of Section 6(e) of this
Agreement:
(i) Loss will apply.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means Euro.
(h) "ADDITIONAL TERMINATION EVENT" will apply as specified in Part 5 below.
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PART 2
TAX REPRESENTATIONS
(a) REPRESENTATIONS OF PARTY A.
(i) PAYER TAX REPRESENTATION. For the purpose of Section 3(e), Party A
hereby makes the following representation:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of any
Relevant Jurisdiction to make any deduction or withholding for or
on account of any Tax from any payment (other than interest under
Sections 2(e), 6(d)(ii) or 6(e)) to be made by it to Party B under
this Agreement. In making this representation, it may rely on:
(A) the accuracy of any representation made by Party B pursuant
to Section 3(f);
(B) the satisfaction of the agreement of Party B contained in
Sections 4(a)(i) or 4(a)(iii) and the accuracy and
effectiveness of any document provided by Party B pursuant to
Sections 4(a)(i) or 4(a)(iii); and
(C) the satisfaction of the agreement of Party B contained in
Section 4(d).
(ii) PAYEE TAX REPRESENTATION. For the purpose of Section 3(f), Party A
makes the representation specified below:
None.
(b) REPRESENTATIONS OF PARTY B
(i) PAYER TAX REPRESENTATION. For the purpose of Section 3(e), Party B
makes the following representation:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of any
Relevant Jurisdiction to make any deduction or withholding for or
on account of any Tax from any payment (other than interest under
Sections 2(e), 6(d)(ii) or 6(e)) to be made by it to Party A under
this Agreement. In making this representation, it may rely on:-
(A) the accuracy of any representation made by Party A pursuant
to Section 3(f);
(B) the satisfaction of the agreement of Party A contained in
Sections 4(a)(i) or 4(a)(iii) and the accuracy and
effectiveness of any document provided by Party A pursuant to
Sections 4(a)(i) or 4(a)(iii); and
(C) the satisfaction of the agreement of Party A contained in
Section 4(d).
(ii) PAYEE TAX REPRESENTATION. For the purpose of Section 3(f), Party B
makes the representation specified below:
None.
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PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:-
(a) Tax forms, documents or certificates to be delivered are:-
PARTY REQUIRED TO DELIVER FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE
DOCUMENT DELIVERED
Party A and Party B Any form or certificate reasonably As soon as possible after the
required by the other party to earlier of (i) reasonable demand
enable payment or receipt of sums by either party and (ii) either
payable under this Agreement with party learning that such form or
no withholding of tax or, as the document is required
case may be, reduced withholding
Party B UK Inland Revenue Form MOD2 (or any Prior to the first day on which
successor to or replacement of such any payment is required to be made
form) by Party A under this Agreement
(b) Other documents to be delivered are:-
PARTY REQUIRED FORM/DOCUMENT/ DATE BY WHICH TO BE COVERED BY
TO DELIVER CERTIFICATE DELIVERED SECTION 3(d)
DOCUMENT REPRESENTATION
Party A and Party B Signature Authentication On or before execution of this YES
satisfactory to the other Agreement
party hereto
Party A The Guarantee of Credit On or prior to execution of YES
Agricole S.A. in favour of this Agreement
Party B, referred to in Part
4(f) below
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PARTY REQUIRED FORM/DOCUMENT/ DATE BY WHICH TO BE COVERED BY
TO DELIVER CERTIFICATE DELIVERED SECTION 3(d)
DOCUMENT REPRESENTATION
Party A A copy of the annual audited On demand YES
financial statements for Party
A's Credit Support Provider
certified by independent
certified public accountants
as being properly prepared in
accordance with accounting
principles that are generally
accepted in the country in
which the party is organised.
Party B A certified copy of the board On or prior to the execution of YES
resolutions of the board of this Agreement and each
directors (or equivalent) Confirmation
approving the terms of this
Agreement and authorising its
execution and performance and
that of any other document as
required under or in
connection with this Agreement
Party B The Credit Support Documents On or prior to the execution of YES
referred to in Part 4(f) below. this Agreement
Party B A certified copy of the board On or prior to the execution of YES
resolutions of the board of this Agreement
directors (or equivalent) of
Party B's Credit Support
Provider(s) approving the
terms of their respective
Credit Support Documents and
authorising their execution
and performance and that of
any other document as required
thereunder or in connection
with this Agreement
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PARTY REQUIRED FORM/DOCUMENT/ DATE BY WHICH TO BE COVERED BY
TO DELIVER CERTIFICATE DELIVERED SECTION 3(d)
DOCUMENT REPRESENTATION
Party B A copy of the annual financial As soon as available and in any YES
statements for each of Party B event 90 (ninety) days after
and Party B's Credit Support the end of each financial year
Provider(s) certified by of Party B and Party B's Credit
independent certified public Support Provider(s)
accountants as being properly
prepared in accordance with
accounting principles that are
generally accepted in the
country in which the party is
organised.
Party B Legal opinion from Counsel to On or prior to the execution of YES
Party B and Party B's Credit this Agreement
Support Provider in form and
substance satisfactory to
Party A
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PART 4
MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purposes of Section 12(a) of this
Agreement:
(i) All notices or communications to Party A shall, with respect to a
particular Transaction, be sent to the address or facsimile number
reflected in the Confirmation of that Transaction, and any notice for
purposes of Sections 5 or 6 (and any notice where no address or facsimile
number is reflected in the Confirmation for a particular Transaction)
shall be sent to:
Address: 00 Xxxxxxxxxx Xxxxxxxx, Xxxxxx
XX0X 0XX
Attention: Derivatives Administration
Facsimile: x00 (0) 00 0000 0000
Telephone No: x00 (0) 00 0000 0000
(ii) All notices or communications to Party B shall be sent to the address,
telex number, or facsimile number reflected below:
Address: Parnassustoren, Xxxxxxxxxxxxx 0,
0000 XX Xxxxxxxxx,
Xxx Xxxxxxxxxxx
Attention: Mrs C Andriesse
Facsimile: x00 00 000 0000
Telephone No: x00 00 000 0000
With a copy to each of:
Xxxx XxxXxxx Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
c/o Trader Classified Media 000 Xxxx Xxxxxx
56 Route de Vandoeuvres Boston
1253 Xxxxxx XX 00000
Xxxxxxxxxxx XXX
Fax: x00 00 000 0000 Fax: x0 000 000 0000
Attention: F. Xxxxxx Xxxxxx
Xxxxx and XxXxxxxx
Xxxxxxxxxxx 00
XX Xxx 0000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: x00 00 000 0000
Attention: Xxx Xxxxxxxx
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(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:-
Party A appoints as its Process Agent: Not Applicable
Party B appoints as its Process Trusec Limited
Agent: 0 Xxxx'x Xxxxxxx
Xxxxxx
XX0X 0XX
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:-
(i) Party A is not a Multibranch Party
(ii) Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:-
In respect of Party A: Guarantee dated 29th March 1995 by Credit Agricole
S.A.
In respect of Party B:
(i) Guarantee dated 29 November 2002 by Beheer-en
Beleggingsmaatschappij Tewina B.V. ("TEWINA") in favour of Party A
(ii) Deed of Assignment dated 29 November 2002 between Tewina and Party
A
(iii) Notarial deed of pledge (Dutch law) between Floscule, the Bank and
Trader Classified Media N.V. ("TRADER") dated on or about the date
hereof in relation to certain shares in Trader
(g) CREDIT SUPPORT PROVIDER. Credit Support Provider means:-
In respect of Party A: Credit Agricole S.A.
In respect of Party B: Tewina
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with English law.
(i) NETTING OF PAYMENTS. All amounts payable on the same date, in the same
currency and in respect of the same Transaction shall be netted in
accordance with Section 2(c) of this Agreement. The election contained in
the last paragraph of Section 2(c) of this Agreement shall not apply for
the purposes of this Agreement.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
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PART 5
OTHER PROVISIONS
(a) CROSS DEFAULT.
(i) Section 5(a)(vi) of this Agreement is modified by inserting the
following proviso at the end of Section 5(a)(vi):
"Provided, however, that notwithstanding the foregoing, an Event of
Default shall not occur (A) under either (1) or (2) above if (a)
the default, event of default or other similar condition or event
referred to in (1) or the default referred to in (2) is a failure
to pay caused by an error or omission of an administrative or
operational nature; and (b) funds were available to such party to
enable it to make the relevant payment when due; and (c) such
relevant payment is made within three Business Days or (B) if there
is a general unavailability of the currency in which Specified
Indebtedness is denominated due to exchange controls or other
governmental action or (C) if it results from compliance with any
law or any order, directive or other action of any governmental
authority or court."
(ii) Section 5(a)(vi) of this Agreement is modified by inserting the
following provision as 5(a)(vi)(3):
"If an event has occurred under Section 5(a)(vi)(1) and Section
5(a)(vi)(2) which would constitute an Event of Default but for the
fact that neither the aggregate amount calculated in respect of
Section 5(a)(vi)(1) nor the aggregate amount calculated in respect
of Section 5(a)(vi)(2) exceeds the Threshold Amount, then the
aggregate amount arising under Section 5(a)(vi)(1) and the
aggregate amount arising under Section 5(a)(vi)(2) shall be
construed so as to produce a "Combined Aggregate Amount". If the
Combined Aggregate Amount exceeds the Threshold Amount, then it
shall be a Cross Default."
(b) ESCROW. If by reason of the time difference between the cities in which
payments are to be made or otherwise, it is not possible for simultaneous
payments to be made on any date on which both parties are required to make
payments hereunder, either party may at its option and in its sole
discretion notify the other party that payments on that date are to be
made in escrow. In this case deposit of the payment due earlier on that
date shall be made by 2:00 p.m. (local time at the place for the earlier
payment) on that date with an escrow agent selected by the party giving
the notice (such escrow agent being a financial institution the long-term
unsecured and unsubordinated obligations of which are rated at least AA by
S & P or Aa2 by Xxxxx'x) accompanied by irrevocable payment instructions
(a) to release the deposited payment to the intended recipient upon
receipt by the escrow agent of the required deposit of the corresponding
payment from the other party on the same date accompanied by irrevocable
payment instructions to the same effect or (b) if the required deposit of
the corresponding payment is not made on that same date, to return the
payment deposited to the party that paid it into escrow. The party that
elects to have payments made in escrow shall pay the costs of the escrow
arrangements and shall cause those arrangements to provide that the
intended recipient of the payment due to be deposited first shall be
entitled to interest on that deposited payment for each day in the period
of its deposit at the rate offered by the escrow agent for that day for
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overnight deposits in the relevant currency in the office where it holds
that deposited payment (at 11:00 a.m. local time on that day) if that
payment is not released by 5:00 p.m. local time on the date it is
deposited for any reason other than the intended recipient's failure to
make the escrow deposit it is required to make hereunder in a timely
fashion.
(c) SET-OFF. Any amount (the "Early Termination Amount") payable to one party
(the Payee) by the other party (the Payer) under Section 6(e), in
circumstances where there is a Defaulting Party or one Affected Party in
the case where a Termination Event has occurred, will, at the option of
the party ("X") other than the Defaulting Party or the Affected Party (and
without prior notice to the Defaulting Party or the Affected Party), be
reduced by its set-off against any amount(s) (the "Other Agreement
Amount") payable (whether at such time or in the future or upon the
occurrence of a contingency) by the Payee to the Payer (irrespective of
the currency, place of payment or booking office of the obligation) under
any other agreement(s) between the Payee and the Payer or instrument(s) or
undertaking(s) issued or executed by one party to, or in favour of, the
other party (and the Other Agreement Amount will be discharged promptly
and in all respects to the extent it is so set-off). X will give notice to
the other party of any set-off effected under this paragraph (c).
For this purpose, either the Early Termination Amount or the Other
Agreement Amount (or the relevant portion of such amounts) may be
converted by X into the currency in which the other is denominated at the
rate of exchange at which such party would be able, acting in a reasonable
manner and in good faith, to purchase the relevant amount of such
currency.
If an obligation is unascertained, X may in good faith estimate that
obligation and set-off in respect of the estimate, subject to the relevant
party accounting to the other when the obligation is ascertained.
Nothing in this paragraph (c) shall be effective to create a charge or
other security interest. This paragraph (c) shall be without prejudice and
in addition to any right of set-off, combination of accounts, lien or
other right to which any party is at any time otherwise entitled (whether
by operation of law, contract or otherwise).
(d) REPRESENTATIONS AND WARRANTIES. Section 3(a) is amended by adding the
following paragraph (vi):-
Each party will be deemed to represent to the other party on the date on
which it enters into a Transaction that (absent a written agreement
between the parties that expressly imposes affirmative obligations to the
contrary for that Transaction):-
(a) NON-RELIANCE. It is acting for its own account, and it has made its
own independent decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based upon
its own judgment and upon advice from such advisors as it has
deemed necessary. It is not relying on any communication (written
or oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it being understood
that information and explanations related to the terms and
conditions of a Transaction shall not be considered investment
advice or a recommendation to enter into that Transaction. It has
not received from the other party an assurance or guarantee as to
the expected results of that Transaction.
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(b) EVALUATION AND UNDERSTANDING. It is capable of evaluating and
understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of that Transaction. It is also capable of
assuming, and assumes, the financial and other risks of that
Transaction.
(c) STATUS OF PARTIES. The other party is not acting as a fiduciary or
an advisor for it in respect of that Transaction.
(e) CONSENT TO RECORDING. The parties agree that each may electronically
record all telephonic conversations between them and that any such
recording may be submitted in evidence to any court or in any Proceedings
for the purpose of establishing any matters pertinent to any Transaction.
(f) PAYMENT INSTRUCTIONS. All payments to be made hereunder in respect of
Transactions shall be made in accordance with standing payment
instructions provided by the parties (or as otherwise specified in a
Confirmation).
(g) FULLY PERFORMED TRANSACTIONS. Notwithstanding the terms of Sections 5 and
6 of this Agreement, if at any time and so long as one of the parties to
this Agreement ('X') shall have satisfied in full all its payment and
delivery obligations under Section 2(a)(i) of this Agreement and shall at
the time have no future payment or delivery obligations, whether absolute
or contingent, under such Section, then unless the other party ('Y') is
required pursuant to appropriate proceedings to return to X or otherwise
returns to X upon demand of X any portion of any such payment or delivery,
(a) the occurrence of an event described in Section 5(a) of this Agreement
with respect to X, any Credit Support Provider of X or any Specified
Entity of X shall not constitute an Event of Default or a Potential Event
of Default with respect to X as the Defaulting Party and (b) Y shall be
entitled to designate an Early Termination Date pursuant to Section 6 of
this Agreement only as a result of the occurrence of a Termination Event
set forth in (i) either Sections 5(b)(i) or 5(b)(ii) of this Agreement
with respect to Y as the Affected Party or (ii) Section 5(b)(iii) of this
Agreement with respect to Y as the Burdened Party.
(h) ADDITIONAL TERMINATION EVENT - IMPOSSIBILITY
The following shall constitute an Additional Termination Event:
If, after the date on which a Transaction is entered into, due to the
occurrence of a natural or manmade disaster, armed conflict, act of
terrorism, riot, or act of state (such an event being an "Impossibility")
it becomes impossible (other than as a result of its own misconduct) in
the context of normal or reasonably available settlement mechanisms for a
party to perform any absolute or contingent obligation, to make a payment
or delivery or to receive a payment or delivery in respect of such
Transaction or to comply with any other material provision of this
Agreement relating to such Transaction or for any Credit Support Provider
of such party to perform any contingent or other obligation which such
Credit Support Provider has under any Credit Support Document relating to
such Transaction.
For the purpose of the foregoing Termination Event, both parties shall be
Affected Parties. As a consequence of the above:
(i) Section 5(c) shall be amended to read as follows:-
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"(c) Event of Default, Illegality and Impossibility
If an event or circumstance which would otherwise constitute or
give rise to an Event of Default also constitutes an Illegality or
Impossibility, it will be treated as an Illegality or
Impossibility, as the case may be, and will not constitute an Event
of Default".
(ii) Each of Sections 6(b)(ii) and 6(b)(iii) of the Agreement is hereby
modified by inserting in the first line of each such sub-section
the phrase "or an Impossibility under Section 5(b)(v)" between the
phrase "Section 5(b)(i)(1)" and the word" or ".
(iii) Section 6(b)(iii) shall be amended to read as follows:-
"(iii) Two Affected Parties. If an Illegality under Section
5(b)(i)(1), or a Tax Event or an Impossibility occurs and there are
two Affected Parties, each party will use all reasonable efforts to
reach agreement within 30 days after notice thereof is given under
Section 6(b)(i) on action to avoid that Termination Event."
(iv) The definition of "Affected Transactions" in Section 14 shall be
amended to read as follows:-
""Affected Transactions" means (a) with respect to any Termination
Event consisting of an Illegality, Tax Event, Tax Event Upon Merger
or Impossibility, all Transactions affected by the occurrence of
such Termination Event and (b) with respect to any other
Termination Event, all Transactions."; and
(v) A new definition of "Impossibility" shall be inserted in Section 14
to read as follows:-
"Impossibility" has the meaning specified in Part 5 above of the
Agreement.
(i) 2000 DEFINITIONS
Unless otherwise specified in a Confirmation, this Agreement incorporates
and is subject to and governed by the 2000 ISDA Definitions (the "2000
Definitions") as published by the International Swaps and Derivatives
Association, Inc.
In the event of any inconsistency between the provisions of this Agreement
and the 2000 Definitions, this Agreement will prevail. In the event of any
inconsistency between the provisions of a Confirmation and this Agreement
or the Definitions, such Confirmation will prevail for the purpose of the
relevant Transaction.
(j) TWO AFFECTED PARTIES
If an Early Termination Date is designated pursuant to Sections 5(b)(i),
(ii), or (iii) of this Agreement, both parties shall be deemed to be
Affected Parties for the purpose of determining the Loss pursuant to
Section to 6(e) of this Agreement.
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(k) LAZARD DISCLAIMER
Party B is hereby notified that and acknowledges that none of Lazard
Freres et Cie, Lazard Freres & Co., LLC, Lazard Brothers & Co. Limited or
any of their partners, officers, employees or any of their subsidiaries or
associates have any responsibility of any kind for any of the debts,
liabilities or other obligations of Party A, or to ensure its solvency or
to make any contribution to its assets as a result of its becoming
insolvent, notwithstanding their interests in its shares, representations
on its board and its rights to use the Lazard name.
(l) EXCEPTION TO TRANSFER RESTRICTION (PARTY A)
Notwithstanding the provisions of Section 7, Party A may, without the
consent of Party B, assign and transfer its rights and obligations under
this Agreement (in whole or in part), upon five days' prior written notice
to Party B, to Caisse Nationale de Credit Agricole (the "Transferee"),
PROVIDED, that (a) the Transferee assumes in writing the rights and
obligations of Party A so assigned; (b) as a result of such assignment and
transfer, no Event of Default, Potential Event of Default or Termination
Event would occur and be continuing; (c) Party B will not suffer any
material additional risk (which Party B would not have suffered had the
assignment and transfer not taken place) of (x) being required on the next
succeeding Scheduled Payment Date to pay to the Transferee an additional
amount in respect of an Indemnifiable Tax under section 2(d)(i)(4) (except
in respect of interest under Sections 2(e) or 6(d)) or (y) receiving on
the next Scheduled Payment Date a payment from which an amount is required
to be deducted or withheld for or on account of a tax (except in respect
of interest under Sections 2(e) or 6(d)) relating to this Agreement and
resulting from such assignment and transfer and in relation to which no
additional amount is payable by the Transferee; and (d) the Transferee
agrees to make such reasonable tax representations to, and agreements
with, Party B in order to effect such an assignment and transfer on the
terms stated above. Upon the effectiveness of any transfer, Party A shall
be released from its obligations as a party to this Agreement (exclusive
of any past or present obligations which have not been satisfied) without
any further notification or other action.
(m) DEMERGER
(i) Notwithstanding the provisions of Section 7, the parties
acknowledge that a statutory demerger (juridische splitsing) of
Party B is contemplated pursuant to which the rights and
obligations of Party B will be transferred by operation of law to
Jactmac Media B.V. (the "DEMERGER").
(ii) Party B agrees that it will only file the demerger proposal as
meant in section 2:334f (2) of the Netherlands Civil Code with the
relevant Chamber of Commerce pursuant to section 2:334h (1) of the
Netherlands Civil Code and announce that the documents have been
filed with the Chamber of Commerce pursuant to section 2:334h (3)
of the Netherlands Civil Code after it has obtained Party A's
consent to the demerger proposal, which consent will not
unreasonably be withheld or delayed. For the avoidance of doubt,
Party A will consent to the demerger proposal if:
(A) it describes in sufficient detail which assets and
liabilities are to be transferred to each of the newly
incorporated companies; and
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(B) pursuant thereto, Jactmac Media B.V. is to assume all the
assets and liabilities of Party B under this Agreement, the
share purchase agreement dated on or about the date of this
Agreement entered into by Party B as vendor in relation to
3,033,598 shares in Trader Classified Media B.V. and Party A
and all other documents relating to the transactions
contemplated hereby and thereby.
(iii) Subject to the provisions of sub-paragraph (ii) above, Party A
hereby consents to the Demerger and consents in advance to the
assignment and transfer of all of the rights and obligations of
Party B under this Agreement and any confirmation executed pursuant
hereto, with effect from the effective time of the Demerger, to
Jactmac Media B.V.
(iv) Subject to the provisions of sub-paragraph (ii) above, Party A
further agrees that it will not institute any proceedings in the
Dutch courts in opposition to the Demerger under section 2:334l of
the Netherlands Civil Code or seeking to nullify the Demerger under
section 2:334u of the Netherlands Civil Code.
(v) Subject to the provisions of sub-paragraph (ii) above, Party A
further agrees for the benefit of Xxx Rubicon I B.V. and Xxx
Rubicon II B.V., two of the successors in interest of Party B under
the Demerger (together the "LTBM Entities"), that it will not ever
assert any claim against the LTBM Entities for liabilities arising
out of the Agreement, this Schedule or any Confirmation entered
into pursuant to the Agreement on the basis of section 2:334t of
the Netherlands Civil Code.
(n) ADDITIONAL EVENT OF DEFAULT
It shall be an additional Event of Default with respect to Party B if an
event of default occurs with respect to Xxxxxx Investissement pursuant to
the put option agreement dated 29 November 2002 between Tewina (as defined
in Part 4(f)) and Trief.
(o) PROVISION OF ASSISTANCE
Section 4 of this Agreement shall be amended by the addition of the
following covenant as Section 4(f):
"(f) PROVISION OF ASSISTANCE: (in the case of Party A only) that it will
use its reasonable endeavours to provide such information and assistance
as Party B may reasonably request for the purposes of completion of UK
Inland Revenue Form MOD2 (or any successor to or replacement of such
form), subject to being indemnified to its satisfaction by Party B for all
costs and expenses properly incurred in complying with Party B's request."
14
IN WITNESS WHEREOF the parties have executed this Schedule on the respective
dates specified below with effect from the date specified on this first page of
this document.
CREDIT AGRICOLE LAZARD FLOSCULE B.V.
FINANCIAL PRODUCTS BANK
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxxxx Xxxxxxxxx
------------------------------ ------------------------------
Name: Name:
Title: Title:
Date: Date:
15
