Exhibit 99.(b)
CONFORMED COPY
US$ 3,000,000,000
REVOLVING CREDIT FACILITY AGREEMENT
between
VNU IRELAND and VNU N.V.
as Original Borrowers
VNU N.V.
as Guarantor
ABN AMRO BANK N.V.
and
XXXXXXX XXXXX INTERNATIONAL
as Arrangers
ABN AMRO BANK N.V.
as Agent
and
THE XXXXX
Xxxxxxxx Chance
Amsterdam
CONTENTS
CLAUSE PAGE NO.
PART 1
DEFINITIONS AND INTERPRETATION
1. Definitions and Interpretation....................................... 1
PART 2
THE FACILITY
2. The Facility......................................................... 16
3. Additional Borrowers................................................. 16
4. Utilisation of the Facility.......................................... 17
PART 3
INTEREST
5. Payment and Calculation of Interest.................................. 20
6. Market Disruption and Alternative Interest Rates..................... 20
PART 4
REPAYMENT AND CANCELLATION
7. Repayment............................................................ 22
8. Cancellation......................................................... 22
PART 5
RISK ALLOCATION
9. Taxes................................................................ 25
10. Tax Receipts......................................................... 26
11. Changes in Circumstances............................................. 26
PART 6
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
12. Representations...................................................... 29
13. Financial Information................................................ 35
14. Financial Condition.................................................. 36
15. Covenants............................................................ 36
16. Events of Default.................................................... 43
PART 7
GUARANTEE
17. Guarantee and Indemnity.............................................. 48
PART 8
DEFAULT INTEREST AND INDEMNITY
18. Default Interest and Indemnity....................................... 51
PART 9
PAYMENTS
19. Currency of Account and Payment...................................... 53
20. Payments............................................................. 54
21. Set-Off.............................................................. 55
22. Sharing.............................................................. 55
PART 10
FEES, COSTS AND EXPENSES
23. Fees................................................................. 57
24. Costs and Expenses................................................... 57
PART 11
AGENCY PROVISIONS
25. The Agent, the Arranger and the Banks................................ 59
PART 12
ASSIGNMENTS AND TRANSFERS
26. Assignments and Transfers............................................ 63
PART 13
MISCELLANEOUS
27. Calculations and Evidence of Debt.................................... 67
28. Remedies and Waivers, Partial Invalidity............................. 68
29. Notices.............................................................. 68
30. Amendments........................................................... 69
PART 14
LAW AND JURISDICTION
31. Law and Jurisdiction................................................. 71
THE SCHEDULES
The First Schedule : The Banks
The Second Schedule : Part A : Form of Bank Transfer Certificate
Part B : Form of Borrower Transfer Certificate
The Third Schedule : Condition Precedent Documents
The Fourth Schedule : Notice of Drawdown
The Fifth Schedule : Form of Accession Agreement
The Sixth Schedule : Opinion of the Guarantor's Counsel
The Seventh Schedule : Opinion of the Banks' Netherlands and Irish Counsel
The Eighth Schedule : Opinion of the Banks' English Counsel
The Ninth Schedule : Form of Disposals Certificate
THIS AGREEMENT is made on the 15th day of August, 1999
BETWEEN
(1) VNU IRELAND and VNU N.V. as original borrowers, (the "ORIGINAL
BORROWERS");
(2) VNU N.V. (the "GUARANTOR");
(3) ABN AMRO BANK N.V. and XXXXXXX XXXXX INTERNATIONAL (each an
"ARRANGER" and together the "ARRANGERS");
(4) ABN AMRO BANK N.V. (the "AGENT"); and
(5) THE BANKS as defined below.
NOW IT IS HEREBY AGREED as follows:
PART 1
DEFINITIONS AND INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS In this Agreement the following terms have the meanings given to
them in this Clause 1.1.
"ACCESSION AGREEMENT" means an agreement substantially in the form set out in
the Fifth Schedule (FORM OF ACCESSION AGREEMENT) between the Guarantor on behalf
of the Borrowers, the Additional Borrower specified therein and the Agent.
"ACQUISITION" means (a) the tender offer by the Purchaser to purchase all of the
issued and outstanding Shares pursuant to the Merger Document, (b) the purchase
of such Shares by the Purchaser and (c) the Merger.
"ACQUISITION DATE" means the date upon which the Purchaser shall have accepted
for payment pursuant to the Tender Offer, that number of Tendered Shares which
satisfies the Minimum Condition.
"ACQUISITION PROPOSAL" has the meaning given to it in the Merger Document.
"ADDITIONAL BORROWER" means any subsidiary of the Guarantor which becomes a
party to this Agreement pursuant to and in accordance with Clause 3 (ADDITIONAL
BORROWERS).
"ADVANCE" means, save as otherwise provided herein, an advance made or to be
made by the Banks hereunder or, as the case may be, the outstanding amount
thereof from time to time.
"APPLICABLE MARGIN" means:
(a) at any time up to and including 30 December 1999, 0.35 per cent. per annum;
and
(b) at any time thereafter, 0.60 per cent. per annum.
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, its Commitment at such time LESS the aggregate of its
portions of the Dollar Amounts of the Advances which are then outstanding
Provided that such amount shall not be less than zero.
"AVAILABLE FACILITY" means, at any time, the aggregate amount of the Available
Commitments at such time.
"BANK" means any financial institution:
(a) named in the First Schedule (THE BANKS); or
(b) which has become a party hereto in accordance with the
provisions of Clause 26.4 (ASSIGNMENTS BY BANKS) or Clause
26.5 (TRANSFERS BY BANKS)
and which has not ceased to be a party hereto in accordance with the terms
hereof.
"BANK TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Part A of the Second Schedule (FORM OF BANK TRANSFER CERTIFICATE) signed
by a Bank and a Transferee Bank whereby:
(a) such Bank seeks to procure the transfer to such Transferee
Bank of all or a part of such Bank's rights, benefits and
obligations hereunder as contemplated in and subject to Clause
26.3 (ASSIGNMENTS AND TRANSFERS BY BANKS); and
(b) such Transferee Bank undertakes to perform the obligations it
will assume as a result of delivery of such certificate to the
Agent as is contemplated in and subject to Clause 26.5
(TRANSFERS BY BANKS).
"BANK TRANSFER DATE" means, in relation to any Bank Transfer Certificate, the
date for the making of the transfer as specified in the schedule to such Bank
Transfer Certificate.
"BASLE PAPER" means the paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988 and prepared by the Basle
Committee on Banking Regulations and Supervision, as amended in November 1991.
"BORROWERS" means the Original Borrowers and each Additional Borrower and
"BORROWER" means any of them.
"BORROWER TRANSFER CERTIFICATE" means a certificate substantially in the form
set out in Part B of the Second Schedule (FORM OF BORROWER TRANSFER CERTIFICATE)
signed by a Borrower and a Transferee Borrower whereby:
(a) such Borrower seeks to procure the transfer to such Transferee
Borrower of all or a part of such Borrower's rights, benefits
and obligations in respect of an Advance made to it hereunder
as contemplated in and subject to Clause 26.11 (TRANSFERS OF
ADVANCES BY BORROWERS); and
(b) such Transferee Borrower undertakes to perform the obligations
it will assume as a
result of delivery of such certificate to the Agent as is
contemplated in and subject to Clause 26.11 (TRANSFERS OF
ADVANCES BY BORROWERS).
"CAPITAL ADEQUACY REQUIREMENT" means a request or requirement of any central
bank or other fiscal, monetary or other authority relating to the maintenance of
capital, including one which makes any change to, or is based on any alteration
in, the official application of the Basle Paper or which increases the amounts
of capital required thereunder, other than a request or requirement made by way
of implementation of the Basle Paper in the manner in which it is being
implemented at the date hereof.
"CLEAN-UP PERIOD" means the period commencing on the date of this Agreement and
ending on the date which is 60 days after the Acquisition Date.
"CODE" means the United States Internal Revenue Code of 1986, as amended.
"COMMITMENT" means, in relation to a Bank at any time and save as otherwise
provided herein, the amount set opposite its name in the First Schedule (THE
BANKS).
"COMPUTER SYSTEM" means any computer hardware or software.
"CONDITIONS TO THE OFFER" means the Conditions to the Offer as set out in
Exhibit A of the Merger Document (in its executed form dated 15 August, 1999).
"CONFIDENTIALITY AGREEMENT" means the confidentiality agreement entered into by
the Guarantor and Target dated 28 July 1999.
"DISCLOSURE LETTER" means the letter dated on or before the date hereof from the
Guarantor to the Arrangers in relation to certain circumstances under certain
bilateral credit and other facilities as more particularly described therein.
"DOLLAR AMOUNT" means:
(a) in relation to any Advance, its Original Dollar Amount as reduced by
the proportion (if any) of such Advance which has been repaid; and
(b) in relation to the Loan, the aggregate of the Dollar Amounts of the
outstanding Advances.
"EFFECTIVE BORROWER TRANSFER DATE" means, in relation to any Borrower Transfer
Certificate, the date for the making of the transfer as specified in the
schedule to such Borrower Transfer Certificate.
"EMPLOYEE PLAN" shall mean an "employee pension benefit plan" as defined in
Section 3(2) of ERISA, other than a Multiemployer Plan, which is maintained for,
or under which contributions are made on behalf of, employees of any US
Subsidiary or any ERISA Affiliate;
"EMU" means Economic and Monetary Union as contemplated in the Treaty on
European Union.
"EMU LEGISLATION" means legislative measures of the European Union for the
introduction of, changeover to or operation of the euro in one or more member
states, being in part legislative measures to implement the third stage of EMU.
"ENVIRONMENT" means:
(a) land including any natural or man-made structures;
(b) water including ground waters and waters in drains and sewers;
(c) air including air within buildings and other natural or man-made
structures above or below ground.
"ENVIRONMENTAL CLAIM" means any claim, proceedings or investigation by any
person pursuant to any Environmental Laws.
"ENVIRONMENTAL LAWS" means all and any applicable laws, including common law,
statute and subordinate legislation, European Community Regulations and
Directives and judgments and decisions, laws and regulations including those of
the United States of America and any state or locality therein, including
notices, orders and circulars, of any court or authority competent to make such
judgment or decision, compliance with which is mandatory for any member of the
VNU Group in any jurisdiction with regard to:
(a) the pollution or protection of the Environment:
(b) harm to the health of humans, animals or plants including laws relating
to public and workers' health and safety;
(c) emissions, discharges or releases into the Environment of chemicals or
any other pollutants or contaminants or industrial, radioactive,
dangerous, toxic or hazardous substances or wastes (whether in solid,
semi-solid, liquid or gaseous form and including noise and
genetically-modified organisms; or
(d) the manufacture, processing, use, treatment, storage, distribution,
disposal, transport or handling of the substances or wastes described
in (c) above.
"ENVIRONMENTAL PERMITS" means all and any permits, licences, consents,
approvals, certificates, qualifications, specifications, registrations and other
authorisations including any conditions which attach to any of the foregoing and
the filing of all notifications, reports and assessments required under
Environmental Laws for the operation of any business or for the sale, use,
ownership, leasing, or operation of any real property.
"ERISA" means the United States Employee Retirement Income Security Act of 1974,
as amended, and the rules and regulations thereunder.
"ERISA AFFILIATE" shall mean any person that for the purposes of Title I and
Title IV of ERISA and Section 412 of the Code is a member of any member of any
US Subsidiary's controlled group, or under common control with any US
Subsidiary, within the meaning of Section 414 (b) and (c) of the Code and the
regulations promulgated and rulings issued thereunder.
"ERISA EVENT" shall mean (i) (A) any reportable event, as defined in Section
4043(c) of ERISA with respect to an Employee Plan, as to which PBGC has not by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within thirty days of the occurrence of such event (provided that a
failure to meet the minimum funding standard of Section 412 of the Code or
Section 302 of ERISA shall be a reportable event for the purposes of this
sub-paragraph (i) regardless of the issuance of any waivers in accordance with
Section 412(d) of the Code); or (B) the requirements of subsection (1) of
Section 4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with respect to a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of an Employee Plan and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with
respect to such Employee Plan within the following 30 days; (ii) the filing
under Section 4041(c) of ERISA of a notice of intent to terminate any Employee
Plan or the termination of any Employee Plan under Section 4042 of ERISA; (iii)
the failure to make
a required contribution to any Employee Plan that would result in the imposition
of a lien under Section 412(n) of the Code or Section 302 (f) of ERISA; and (iv)
an engagement in a non-exempt prohibited transaction within the meaning of
Section 4975 of the Code or Section 406 of ERISA.
"ESCROW ACCOUNTS" means the accounts to be opened by the Agent in the name of
the Guarantor and/or VNU Ireland with the Agent from which amounts may be drawn
only for the purposes referred to in Clause 8.5 (MANDATORY PREPAYMENT FROM
DISPOSALS) bearing interest at the rate from time to time offered by the Agent
to prime customers on deposit accounts for deposits of a similar size.
"ESCROW ACCOUNT AGREEMENT" means the agreement entered or to be entered into by
the Original Obligors in relation to the Escrow Account and payments to be made
therefrom.
"EURIBOR" means, in relation to any amount to be advanced to, or owing by, an
Obligor hereunder in euro on which interest for a given period is to accrue:
(a) the percentage rate per annum equal to the offered quotation which
appears on the page of the Telerate Screen which displays an average
rate of the Banking Federation of the European Union for the euro
(being currently page 248) for such period at or about 11.00 a.m.
(Brussels time) on the Quotation Date for such period, or if such page
or such service is not or shall cease to be available or relevant, such
other page or such other service for the purpose of displaying an
average rate of the Banking Federation of the European Union as the
Agent, after consultation with the Banks and the Guarantor, shall
select; or
(b) if no such quotation for the euro for the relevant period is displayed
and the Agent has not selected an alternative service on which a
quotation is displayed, the arithmetic mean (rounded upwards to four
decimal places) of the rates (as notified to the Agent) at which each
of the Reference Banks was offering to prime banks in the European
interbank market deposits in the euro of an equivalent amount or euros
for such amount and for such period at or about 11.00 a.m. (Brussels
time) on the Quotation Date for such period.
"EVENT OF DEFAULT" means any circumstances described as such in Clause 16
(EVENTS OF DEFAULT).
"FACILITY" means the revolving credit facility granted to the Borrowers in this
Agreement.
"FACILITY OFFICE" means:
(a) in relation to the Agent, the office identified with its signature
below or such other office as it may from time to time select; and
(b) in relation to any Bank, the office identified with its signature below
(or, in the case of a Transferee, at the end of the Bank Transfer
Certificate to which it is a party as Transferee).
"FINAL MATURITY DATE" means the day which is 364 days after the date hereof.
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976.
"INDEBTEDNESS" means any obligation (whether incurred as principal or as surety)
for the payment or repayment of money, whether present or future, actual or
contingent;
"INITIAL PERIOD" means the period commencing on the date hereof and ending on
the date upon which the Guarantor has issued share capital (other than under any
supervisory or executive directors' or employees' share incentive scheme of the
VNU Group) in an amount agreed in writing with the Arrangers and the proceeds of
such share issuance have been applied in payment to the Escrow Accounts in the
manner contemplated in Clause 8.6 or in prepayment of the Loan pursuant to
Clause
8.6 (MANDATORY PREPAYMENT FROM PROCEEDS OF SHARES ISSUES).
"INSTRUCTING GROUP" means:
(a) whilst no Advances are outstanding hereunder, a Bank or group of Banks
whose Commitments amount (or, if each Bank's Commitment has been
reduced to zero, did immediately before such reduction to zero, amount)
in aggregate to more than 66 2/3 per cent. of the Total Commitments;
and
(b) whilst at least one Advance is outstanding hereunder, a Bank or group
of Banks to whom in aggregate more than 66 2/3 per cent. of the Dollar
Amount of the Loan is owed.
"IRI ACTION" means the filing on 29 July 1996 by Information Resources, Inc. of
a complaint in the United States District Court for the Southern District of New
York, naming as defendants The Dun & Bradstreet Corporation, XX Xxxxxxx Company
and a predecessor of IMS Health Incorporated.
"IRS" means the United States Internal Revenue Service.
"LETTER OF TRANSMITTAL" means the form of letter of transmittal filed as an
exhibit to the Schedule 14D-1 to be filed by the Guarantor and the Purchaser
with the SEC pursuant to Section 14(d)(1) of the Exchange Act with respect to
the Tender Offer.
"LIBOR" means, in relation to any amount owed by an Obligor hereunder in dollars
on which interest for a given period is to accrue:
(a) the rate per annum determined by the Agent to be equal to the
arithmetic mean (rounded upwards, if not already such a multiple, to
the nearest whole multiple of one thousandth of one per cent.) of the
offered quotations which appear on page 3740 or if applicable 3750 of
the Telerate Service designated for the display of London Interbank
Offered Rates for dollars (or, if such page or such service shall cease
to be available, such other page or such other service, as the case may
be, for the purpose of displaying London Interbank Offered Rates for
dollars as the Agent, in consultation with the Banks and the Borrowers,
shall select) for such period at or about 11.00 a.m. (London time) on
the Quotation Date for such period; or
(b) if less than two offered quotations for dollars and the relevant period
are displayed on the relevant page of the Telerate Service and the
Agent has not selected in consultation with the Borrowers an
alternative service on which two or more such quotations are displayed,
the rate per annum determined by the Agent to be the arithmetic mean
(rounded upwards, if not already such a multiple, to the nearest whole
multiple of one thousandth of one per cent.) of the rates (as notified
to the Agent (who shall notify the same to the Guarantor)) at which
each of the Reference Banks was offering to prime banks in the London
Interbank Market deposits in dollars of such amount and for such period
at or about 11.00 a.m. (London time) on the Quotation Date for such
period.
"LOAN" means the aggregate principal amount for the time being outstanding
hereunder.
"MARGIN STOCK" has the meaning assigned that term in Regulation U of the Board
of Governors of the Federal Reserve System of the United States (or any
successor) as in effect from time to time.
"MERGER" means the merger to take place between Purchaser and Target after the
date hereof as contemplated by and pursuant to the terms of the Merger Document.
"MERGER DOCUMENT" means the agreement and plan of merger dated 15 August, 1999
and entered into between the Purchaser, Parent and Target.
"MERGER DOCUMENT GUARANTEE" means the guarantee entered or to be entered into by
VNU N.V. in respect, INTER ALIA, of the obligations of the Parent and the
Purchaser under the Merger Document.
"MINIMUM CONDITION" has the meaning given to it in Exhibit A to the Merger
Document.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" (as such term is defined in
Section 4001(a)(3) of ERISA).
"NET DISPOSAL PROCEEDS" means the cash proceeds (including any amount received
in repayment of intercompany debt) of any disposal of any asset or revenue of
any member of the VNU Group after deducting:
(a) reasonable out of pocket expenses incurred by any member of
the VNU Group due to such disposal;
(b) VAT paid or payable by the seller due to such disposal;
(c) any tax incurred and required to be paid by the seller in
connection with such disposal (as reasonably determined by the
seller, acting in good faith, on the basis of existing rates
and taking account of any available credit, deduction or
allowance).
"NEWSPAPER GROUP" means VNU Dagbladengroep B.V. and its subsidiaries.
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out in the
Fourth Schedule (NOTICE OF DRAWDOWN).
"OBLIGORS" means each of the Borrowers and the Guarantor and "OBLIGOR" means any
of them.
"OFFER TO PURCHASE" means the Offer to Purchase for Cash to be filed as an
exhibit to the Schedule 14D-1 by the Guarantor and the Purchaser with the SEC in
connection with the Tender Offer.
"ORIGINAL FINANCIAL STATEMENTS" means in relation to the Guarantor, its audited
consolidated financial statements for its financial year ended 31 December,
1998.
"ORIGINAL DOLLAR AMOUNT" means, in relation to an Advance, the amount thereof
requested in the Notice of Drawdown relating thereto (as the same may be reduced
pursuant to Clause 4.5 (REDUCTION OF AVAILABLE COMMITMENT) or, if such Advance
is not denominated in dollars, the equivalent of such amount (as the same may be
so reduced) in euros, calculated as at the date of such Notice of Drawdown.
"ORIGINAL OBLIGORS" means the Original Borrowers and the Guarantor.
"PARENT" means VNU USA, Inc.
"PBGC" means the United States Pension Benefit Guaranty Corporation or any
successor thereto under ERISA.
"PERMITTED ACQUISITION" has the meaning given to it in Clause 15.17 (MERGERS AND
ACQUISITIONS).
"PERMITTED ENCUMBRANCE" means:
(a) a lien arising by operation of law in the ordinary course of business
and securing amounts which are not more than 90 days overdue; or
(b) an encumbrance in existence on the date of the signing of this
Agreement, or thereafter arising under the General Terms and Conditions
("ALGEMENE BANKVOORWAARDEN") or the equivalent in any jurisdiction of
banking or financial institutions (other than under any provision which
allows for such banking or financial institutions to call for security
to be provided in terms set out in or substantially equivalent to those
set out in Article 20 of the General Terms and Conditions applicable to
Dutch banks) or arising out of interest set-off agreements (so called
"RENTECOMPENSATIE-OVEREENKOMSTEN") or agreements having substantially
the same effect; or
(c) an encumbrance on any asset securing Specified Indebtedness incurred
for the purpose of financing the acquisition of such asset (provided
the amount secured thereby is not subsequently increased); or
(d) an encumbrance existing on any asset prior to the acquisition of such
asset (through shares or through assets) and not created in
contemplation of such event (provided the amount secured thereby is not
subsequently increased); or
(e) an encumbrance arising out of the refinancing or extension of the
maturity of Specified Indebtedness (in an amount no greater than the
amount of such Specified Indebtedness prior to the relevant refinancing
or extension) where the relevant encumbrance is of the same type and
secures the same (and no other) asset as that secured by another
encumbrance permitted by the above; or
(f) an encumbrance not otherwise permitted by the above securing Specified
Indebtedness in an aggregate amount not exceeding NLG 225,000,000
(provided, however, that the limit of NLG 225,000,000 shall be
increased by NLG 25,000,000 for each and every NLG 500,000,000 by which
the annual consolidated net revenues of the VNU Group for its financial
year ended 31 December, 1999 exceed NLG 4,500,000,000, as evidenced by
the Guarantor's annual audited consolidated financial statements for
its financial year ended 31 December, 1999).
"POTENTIAL EVENT OF DEFAULT" means any event which could reasonably be expected
to become (with the passage of time or the giving of notice or upon any of the
Obligors becoming aware of the same or any combination thereof) an Event of
Default.
"PROPORTION" means, in relation to a Bank:
(a) whilst no Advances are outstanding hereunder, the proportion borne by
its Commitment to the Total Commitments (or, if the Total Commitments
are then zero, by its Commitment to the Total Commitments immediately
prior to their reduction to zero); or
(b) whilst at least one Advance is outstanding hereunder, the proportion
borne by its share of the Dollar Amount of the Loan to the Dollar
Amount of the Loan.
"PURCHASER" means the party expresed to be party to the Merger Document as
"Purchaser".
"QUOTATION DATE" means, in relation to any period for which an interest rate is
to be determined hereunder, the day on which quotations would ordinarily be
given by prime banks in:
(a) the London Interbank Market (in the case of any interest rate to be
determined by reference to LIBOR); or
(b) the European Interbank Market (in the case of any interest rate to be
determined by reference to EURIBOR)
for deposits in the currency in relation to which such rate is to be determined
for delivery on the first day of that period Provided that, if, for any such
period, quotations would ordinarily be given on more than one date, the
Quotation Date for that period shall be the last of those dates.
"REFERENCE BANKS" means, for the purposes of determining any interest rate
pursuant to the definition of LIBOR, the principal London offices of ABN AMRO
Bank N.V., Citibank, N.A. and Deutsche Bank AG or, for the purposes of
determining any interest rate pursuant to the definition of EURIBOR, the
principal Brussels offices of ABN AMRO Bank N.V., Citibank, N.A. and Deutsche
Bank AG or, in either case, such other banks as may be appointed as such by the
Agent in consultation with the Guarantor.
"REGULATIONS" mean any regulations of the Board of Governors of the Federal
Reserve System of the United States from time to time in force.
"REPAYMENT DATE" means, in relation to any Advance, the last day of the Term
thereof.
"RESTRICTED INDEBTEDNESS" means:
(a) any Indebtedness for borrowed monies owing to a bank or other financial
institution or any subsidiary of a bank or other financial institution
and any Indebtedness for borrowed monies represented by any bonds,
notes, debentures or other securities;
(b) any amount raised by acceptance under any acceptance credit facility or
any amount raised pursuant to any issue of shares which are expressed
to be redeemable prior to the Final Maturity Date;
(c) the amount of any receivables sold or discounted (other than on a
non-recourse basis);
(d) Indebtedness under any agreement or option to re-acquire an asset
previously owned by a member of the VNU Group if the primary reason for
entering into such agreement or option is to raise finance and which
involves the payment of monies to or for the benefit of any member of
the VNU Group;
(e) any amount raised under any other transaction (including any forward
sale or purchase agreement but excluding any Indebtedness of the type
referred to in paragraph (g) of "SPECIFIED INDEBTEDNESS") having the
commercial effect of a borrowing and which involves the payment of
monies to or for the benefit of any member of the VNU Group
other than any Indebtedness falling within any of paragraphs (a) to (e) above:
(i) owed by one member of the VNU Group to another member of the VNU Group
in which the Guarantor has, directly or indirectly, an equity share at
least equal to the equity share which it holds, directly or indirectly,
in such first-mentioned member of the VNU Group; or
(ii) which is promptly applied in the refinancing of any Indebtedness
falling within (a) to (e) above which is outstanding on the date hereof
or which arises after the date hereof as a result of the utilisation of
any agreement or arrangement in place on the date hereof and which is
repayable not earlier than the Final Maturity Date or which, prior to
the Final Maturity Date, would amortise no quicker than the
Indebtedness which is being refinanced thereby provided that, if the
Indebtedness to be refinanced is owed by an Obligor, the Indebtedness
permitted to be incurred under this paragraph (ii) may be incurred only
by such Obligor.
"ROLLOVER ADVANCE" means an Advance which is used to refinance a maturing
Advance or Advances
and which is in the same amount and the same currency as such maturing Advance
or Advances and is to be drawn on the day such maturing Advance or Advances is
(or are) to be repaid.
"SEC" means the United States Securities and Exchange Commission.
"SHARES" has the meaning given to it in the Merger Document.
"SPECIFIED INDEBTEDNESS" means:
(a) any Indebtedness for borrowed monies owing to a bank or other financial
institution or any subsidiary of a bank or other financial institution
and any Indebtedness for borrowed monies represented by any bonds,
notes, debentures or other securities;
(b) any amount raised by acceptance under any acceptance credit facility or
any amount raised pursuant to any issue of shares which are expressed
to be redeemable prior to the Final Maturity Date;
(c) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with generally accepted accounting
principles in the relevant jurisdiction, be treated as a finance or
capital lease;
(d) the amount of any liability in respect of any advance or deferred
purchase agreement if the primary reason for entering into such
agreement is to raise finance;
(e) the amount of any receivables sold or discounted (other than on a
non-recourse basis);
(f) Indebtedness under any agreement or option to re-acquire an asset
previously owned by a member of the VNU Group if the primary reason for
entering into such agreement or option is to raise finance;
(g) for the purpose of Clause 12.1 (n), Clause 12.1(o), Clause 15.6 and
Clause 16.5, Indebtedness under any interest rate or currency swap,
forward foreign exchange transaction, cap, floor, collar or option
transaction or similar derivative or treasury transaction (and for this
purpose the amount of the "SPECIFIED INDEBTEDNESS" in relation thereto
shall be calculated by reference to the xxxx-to-market valuation of the
relevant transaction at the relevant time);
(h) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing; and
(i) the amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs (a) to (h) above
other than any Indebtedness falling within any of paragraphs (a) to (i) above
owed by one member of the VNU Group to another member of the VNU Group in which
the Guarantor has, directly or indirectly, an equity share at least equal to the
equity share which it holds, directly or indirectly, in such first-mentioned
member of the VNU Group.
"SYNDICATION DATE" means the day notified by the Arrangers to the Guarantor as
the day on which primary syndication of the Facility is completed which shall in
any event be no later than 90 days after the date of announcement of the Tender
Offer.
"TARGET" means Xxxxxxx Media Research, Inc., a corporation organised and
existing under the laws of the State of Delaware.
"TARGET GROUP" means Target and its subsidiaries for the time being.
"TENDER OFFER" means the tender offer made or to be made by the Purchaser for
the shares of Target pursuant to the terms of the Merger Document.
"TENDER OFFER DOCUMENTS" means the Tender Offer Statement and the Offer to
Purchase (the "SCHEDULE 14D-1") to be filed by the Parent and the Purchaser
together with all amendments, supplements and exhibits thereto, including the
form of Merger Document, the Offer to Purchase and the form of Letter of
Transmittal set forth in the Exhibits thereto.
"TENDERED SHARES" means the Shares which are tendered pursuant to the Tender
Offer and not withdrawn.
"TERM" means, save as otherwise provided herein, in relation to any Advance, the
period for which such Advance is borrowed as specified in the Notice of Drawdown
relating thereto.
"TOTAL COMMITMENTS" means the aggregate for the time being of the Banks'
Commitments.
"TRANSACTION DOCUMENTS" means the Merger Document, the certificate of merger
contemplated by the Merger Document, the Merger Document Guarantee, the Tender
Offer Documents in each case as amended, novated, supplemented or modified from
time to time.
"TRANSACTIONS" shall mean the execution, delivery and performance by each
Obligor, the Parent and the Purchaser of each of this Agreement and the
Transaction Documents to which it is a party, the borrowings hereunder, the
satisfaction of the conditions to such borrowings, the completion of the Tender
Offer and the purchase of the Tendered Shares pursuant thereto, and the Merger,
and the other transactions contemplated by any thereof.
"TRANSFEREE BANK " means a bank or other financial institution to which a Bank
seeks to transfer all or part of such Bank's rights, benefits and obligations
hereunder.
"TRANSFEREE BORROWER" means a Borrower to which any other Borrower seeks to
transfer all or part of such Borrower's rights, benefits and obligations in
relation to any Advance made to it hereunder.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957, as amended
by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was signed at
Maastricht of 7 February 1992 and came into force on 1 November 1993).
"UNITED STATES" and "US" means the United States of America (including the
District of Columbia), its territories, possessions and other areas subject to
the jurisdiction of the United States of America.
"US SUBSIDIARY" means (a) the Target and (b) any subsidiary of the Target or the
Guarantor which is incorporated under the laws of the US or any state thereof.
"VNU GROUP" means, at any time, the Guarantor and each of its subsidiaries at
such time which are or would be (if consolidated accounts of the Guarantor were
to be prepared at such time) consolidated with the Guarantor in the consolidated
accounts of the Guarantor in accordance with accounting principles generally
accepted in The Netherlands and including, on and following the date of the
first Advance, the Target Group.
"YEAR 2000 COMPLIANT" means, in relation to any Computer System, that any
reference to or use of a date before, on or after 31 December 1999 in the
operation of that Computer System will not have a material adverse effect on the
use of that Computer System.
1.2 INTERPRETATION Any reference in this Agreement to:
the "AGENT" or any "BANK" shall be construed so as to include its and any
subsequent successors, Transferees and assigns in accordance with their
respective interests;
"THIS AGREEMENT" and "HEREUNDER" shall, where the context so permits, include a
reference to the Escrow Account Agreement;
"ASSETS" of any person includes a reference to such person's properties and
revenues of whatever nature;
a "BUSINESS DAY" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which (i) banks generally are open for business in London
and Amsterdam and (ii) if such reference relates to:
(a) a date for the payment or purchase of any sum denominated in, rate
fixing in (or any other matter relating to) dollars, banks generally
are open for business in New York; or
(b) a date for the payment or purchase of any sum denominated in, rate
fixing in (or any other matter relating to) euros, a day on which the
Trans-European Automated-Real Time Gross Settlement Express Transfer
System (TARGET) is operating;
a "DISPOSAL" includes any sale, lease, assignment, transfer or other disposal
and "DISPOSE OF" shall be construed accordingly;
an "ENCUMBRANCE" means a mortgage, charge, pledge, lien or other encumbrance
securing any obligation of any person, or any other type of preferential
arrangement (including title transfer and retention arrangements) having a
similar (economic) effect;
the "EQUIVALENT" on any given date in one currency (the "FIRST CURRENCY") of an
amount denominated in another currency (the "SECOND CURRENCY") is a reference to
the amount of the first currency which could be purchased with the amount of the
second currency at the spot rate of exchange quoted by the Agent at or about
11.00 a.m. (Amsterdam time) on such date for the purchase of the first currency
with the second currency;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned company or
corporation is a subsidiary;
a "LAW" shall be construed as any law (including common or customary law),
statute, constitution, decree, judgment, treaty, regulation, directive, bye-law,
order or any other legislative measure of any government, supranational, local
government, statutory or regulatory body or court;
a "MEMBER STATE" shall be construed as a member state of the European Union;
a "MONTH" is a reference to a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next succeeding calendar
month save that, where any such period would otherwise end on a day which is not
a business day, it shall end on the next succeeding business day, unless that
day falls in the calendar month succeeding that in which it would otherwise have
ended, in which case it shall end on the immediately preceding business day
Provided that, if a period starts on the last business day in a calendar month
or if there is no numerically corresponding day in the month in which that
period ends, that period shall end on the last business day in that later month
(and references to "MONTHS" shall be construed accordingly);
a "PERSON" shall be construed as a reference to any person, firm, company,
corporation, government,
state or agency of a state or any association or partnership (whether or not
having separate legal personality) of two or more of the foregoing;
the "RELEVANT INTERBANK MARKET" is a reference to:
(a) in relation to the euro, the European interbank market; or
(b) in relation to dollars, the London interbank market;
the "RELEVANT INTERBANK RATE" is a reference to:
(a) in relation to the euro, EURIBOR; or
(b) in relation to dollars, LIBOR;
a "SUBSIDIARY" of a company or corporation shall be construed as a reference to
any company or corporation:
(a) which is controlled, directly or indirectly, by the first-mentioned
company or corporation; or
(b) more than half the issued share capital of which is beneficially owned,
directly or indirectly, by the first-mentioned company or corporation;
or
(c) which is a subsidiary of another subsidiary of the first-mentioned
company or corporation
and, for these purposes, a company or corporation shall be treated as being
controlled by another if that other company or corporation is empowered to
independently manage that company's business and to nominate the majority of
that company's board of directors which have ultimate control over the
management of the company (or equivalent body);
"TAX" shall be construed so as to include any tax, levy, impost, duty or other
charge of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the same);
"VAT" shall be construed as a reference to value added tax including any similar
tax which may be imposed in place thereof from time to time;
the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a company or corporation
shall be construed so as to include any equivalent or analogous proceedings
under the law of the jurisdiction in which such company or corporation is
incorporated or any jurisdiction which may from time to time be applicable
including liquidation, winding-up, dissolution, bankruptcy, administration,
scheme of arrangement with creditors and moratorium on payments; and
a time of day is a reference to London time unless otherwise stated.
1.3 CURRENCY SYMBOLS "EUROS" denotes the single currency of the European Union
as constituted by the Treaty on European Union and as referred to in EMU
legislation, "NLG" denotes the national currency unit of the euro as used in The
Netherlands and "$" and "DOLLARS" denotes lawful currency of the United States.
1.4 STATUTES Any reference in this Agreement to a statute shall be construed as
a reference to such statute as the same may have been, or may from time to time
be, amended or re-enacted.
1.5 HEADINGS Clause, Part and Schedule headings are for ease of reference only.
PART 2
THE FACILITY
2. THE FACILITY
2.1 GRANT OF THE FACILITY The Banks (in accordance with their respective
Commitments) grant to the Borrowers, upon the terms and subject to the
conditions hereof, a revolving credit facility in an aggregate amount of $
3,000,000,000 or its equivalent from time to time in euros.
2.2 PURPOSE AND APPLICATION The Facility is intended to finance the Acquisition,
the payment of all fees and expenses in connection therewith and the refinancing
of certain Indebtedness of the VNU Group and the Target Group. Accordingly, each
of the Borrowers shall apply all amounts raised by it hereunder in satisfaction
of such purposes. None of the Agent, the Arrangers and the Banks shall be
obliged to concern themselves with such application.
2.3 CONDITION PRECEDENT DOCUMENTS Save as the Banks may otherwise agree, no
Borrower may deliver any Notice of Drawdown hereunder unless the Agent has
confirmed to the Borrowers (which it shall do reasonably promptly on receipt)
that it has received all of the documents listed in the Third Schedule
(CONDITION PRECEDENT DOCUMENTS) and that each is, in form and substance,
satisfactory to the Agent (acting reasonably) PROVIDED THAT in the case of the
Tender Offer Documents (other than the Merger Agreement), the Agent shall be
entitled to satisfy itself only in respect of whether or not it substantially
reflects the terms of the Tender Offer and the Merger as set out in the Merger
Document, subject to such amendments and waivers thereto or thereunder as may be
made or granted as permitted hereunder. The Agent shall, when it notifies the
Borrowers in accordance with the preceding sentence, copy such notice to each of
the Banks.
2.4 BANKS' OBLIGATIONS SEVERAL The obligations of each Bank hereunder are
several and the failure by a Bank to perform its obligations hereunder shall not
affect the obligations of any Obligor towards any other party hereto nor shall
any other party be liable for the failure by such Bank to perform its
obligations hereunder. The amounts outstanding at any time hereunder from any
Obligor to any of the parties hereto shall, subject as otherwise provided
herein, be a separate and independent debt and each such party shall, subject to
the terms of this Agreement, be entitled to protect and enforce its individual
rights arising out of this Agreement independently of any other party and it
shall not be necessary for any party hereto to be joined as an additional party
in any proceedings for this purpose.
3. ADDITIONAL BORROWERS
3.1 DELIVERY OF ACCESSION AGREEMENTS The Guarantor may, subject to this Clause
3.1 and provided that no Event of Default or Potential Event of Default has
occurred which is continuing, designate any of its subsidiaries which is
incorporated in an OECD country or any other country approved by all the Banks
to be an Additional Borrower for the purposes of this Agreement by delivering to
the Agent an Accession Agreement duly executed by the Guarantor and such
subsidiary together with each of the condition precedent documents referred to
therein.
3.2 ACCESSION OF ADDITIONAL BORROWERS PARTY TO THIS AGREEMENT Upon receipt by
the Agent of an Accession Agreement in the form specified in Clause 3.1
(DELIVERY OF ACCESSION AGREEMENTS) and subject to the receipt by the Agent of
each of the condition precedent documents referred to therein in form and
substance satisfactory to the Agent (acting reasonably) and the satisfaction of
any other conditions as may be agreed upon in writing between the Agent and the
Guarantor, the Additional Borrower expressed to be a party to such Accession
Agreement shall become a party to this Agreement as an Additional Borrower and
any references herein to an "Additional Borrower", a "Borrower" or an "Obligor"
shall be construed accordingly. The Guarantor may, at any time that no Advances
are outstanding to a particular Borrower and such Borrower owes no other amounts
hereunder, designate by notice in writing to the Agent that such Borrower shall
cease to be a Borrower hereunder and any references herein to an "Additional
Borrower", a "Borrower" or an "Obligor" shall be construed accordingly.
3.3 AGENT'S AUTHORITY Each of the Arrangers and the Banks irrevocably authorises
the Agent to execute any Accession Agreement on its behalf. The Agent shall
promptly notify each of the Banks of the execution by it of any Accession
Agreement.
3.4 ORIGINAL BORROWER'S AUTHORITY Each of the Obligors (other then the
Guarantor) irrevocably authorises the Guarantor to designate any of its
subsidiaries as an Additional Borrower pursuant to Clause 3.1 (DELIVERY OF
ACCESSION AGREEMENTS) and irrevocably authorises the Guarantor to execute on its
behalf any Accession Agreement in relation thereto.
4. UTILISATION OF THE FACILITY
4.1 DELIVERY OF NOTICE OF DRAWDOWN A Borrower may from time to time request the
making of an Advance under the Facility by the delivery to the Agent, by no
later than 11.00 a.m. (CET time) on the third business day before the proposed
date for the making of such Advance or, in the case of the first Advance
hereunder (but provided that such Advance is denominated in dollars), no later
than 11.00 a.m. (CET time) on the business day before the proposed date for the
making of such Advance, of a duly completed Notice of Drawdown therefor.
4.2 DRAWDOWN DETAILS Each Notice of Drawdown delivered to the Agent pursuant to
Clause 4.1 (DELIVERY OF NOTICE OF DRAWDOWN) shall be irrevocable and shall
specify:
(a) the proposed date for the making of the Advance requested,
which shall be a business day falling one business day or more
before the Final Maturity Date and which shall be at least one
business day after the date upon which the previous Advance
(if any) was made hereunder Provided that more than one
Advance may be made on the same business day if each such
Advance is to be denominated in a different currency;
(b) the currency of denomination of the Advance requested, which
shall be dollars or euros;
(c) the amount of the Advance requested, which shall be a minimum
amount of $10,000,000 and an integral multiple of $10,000,000
(or, if the Advance is to be denominated in an euros, euros
10,000,000) and the Original Dollar Amount of which shall not
exceed the Available Facility adjusted to take account of:
(i) any reduction, if any, requested by a Borrower
pursuant to Clause 8.1 or 8.4 or otherwise in
accordance with Clause, 8.5, 8.6, 11.3 or 16.19 in
the Commitment of a Bank scheduled to be made prior
to the proposed date for the making of the proposed
Advance; and
(ii) the Dollar Amounts of any Advances which are
scheduled to be made or repaid on or before the date
of drawdown of the proposed Advance;
(d) the proposed Term of the Advance requested, which shall be a
period of one, two, three or six months ending on or before
the Final Maturity Date or, prior to the Syndication Date, a
period of 7, 14 or 21 days or 1 month (or such longer period
as the Agent may permit) PROVIDED THAT if the Syndication Date
has been notified by the Arrangers to the Guarantor the Term
of any Advance which would otherwise end in the 7 days
preceding or would otherwise extend beyond the Syndication
Date, shall be of such duration that it shall end on the
Syndication Date; and
(e) the account to which the proceeds of the proposed drawdown are
to be paid.
4.3 DRAWDOWN CONDITIONS If a Borrower requests an Advance in accordance with the
preceding provisions of this Clause 4 and, on the proposed date for the making
of such Advance:
(a) neither of the events mentioned in paragraphs (a) and (b) of
Clause 6.1 (MARKET DISRUPTION) shall have occurred (unless the
circumstances which gave rise to such event or events are no
longer continuing);
(b) the Original Dollar Amount of such Advance does not exceed the
Available Facility;
(c) there would not, immediately after the making of such Advance,
be more than ten Advances outstanding;
(d) (save in the case of a Rollover Advance) no Event of Default
or Potential Event of Default has occurred which has not been
remedied and the representations repeated pursuant to Clause
12.2 are true on and as of the proposed date for the making of
such Advance; and
(e) (in the case of any Advance to be drawn down on or before the
date on which the Tendered Shares satisfying the Minimum
Condition are paid for) the board of directors of the Target
shall not have withdrawn its approval or recommendation of the
Tender Offer, the Merger Document or the Merger or shall have
recommended or approved an alternative Acquisition Proposal
made by a person other than the Parent or another member of
the VNU Group
then, save as otherwise provided herein, such Advance will be made in accordance
with the provisions hereof PROVIDED THAT no Advance shall be made hereunder for
the purpose of refinancing any Indebtedness of any member of the VNU Group or
the Target Group until the Purchaser shall have accepted for payment, paid for
and acquired Tendered Shares satisfying the Minimum Condition.
4.4 EACH BANK'S PARTICIPATION Each Bank will participate through its Facility
Office in each Advance made pursuant to this Clause 4 in the proportion borne by
its Available Commitment to the Available Facility immediately prior to the
making of that Advance.
4.5 REDUCTION OF AVAILABLE COMMITMENT If a Bank's Commitment is reduced in
accordance with Clause 8.1 or 8.4 or otherwise in accordance with Clause 11.3 or
16.18 after the Agent has received the Notice of Drawdown for an Advance and
such reduction was not taken into account pursuant to paragraph (c)(i) of Clause
4.2 (DRAWDOWN DETAILS), then both the Original Dollar Amount and the amount of
that Advance shall be reduced accordingly.
PART 3
INTEREST
5. PAYMENT AND CALCULATION OF INTEREST
5.1 PAYMENT OF INTEREST On the Repayment Date relating to each Advance the
relevant Borrower shall pay accrued interest on that Advance.
5.2 INTEREST ON ADVANCES The rate of interest applicable to an Advance from time
to time during its Term shall be the rate per annum which is the sum of the
Applicable Margin and LIBOR or (in the case of an Advance denominated in euros)
EURIBOR on the Quotation Date therefor PROVIDED THAT, if the Notice of Drawdown
for any Advance is received after 11.00 a.m. (CET time) on the third business
day prior to the proposed date of such Advance, the rate of interest applicable
to each Bank's portion of such an Advance from time to time during its Term
shall be the rate per annum which is the sum of the Applicable Margin at such
time and the rate per annum notified to the Agent by such Bank before the last
day of such Term to be that which expresses as a percentage rate per annum the
cost to such Bank of funding from whatever sources it may reasonably select
(with a view to minimising such cost so far as is reasonably practicable in the
circumstances) its portion of such Advance during such Term.
6. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
6.1 MARKET DISRUPTION If, in relation to any Advance:
(a) the relevant interbank rate is to be calculated in accordance
with paragraph (b) of the definition thereof in Clause 1.1
(DEFINITIONS) or the interest rate applicable to an Advance
during the Term relating thereto falls to be determined in
accordance with Clause 6.2 (INABILITY TO FUND) and the Agent
determines that at or about the relevant time specified in
paragraph (b) of the definition of LIBOR or EURIBOR (as the
case may be) or Clause 6.2 (INABILITY TO FUND), as the case
may be, on the Quotation Date for such Term no more than one
of the relevant Reference Banks was offering to prime banks in
the relevant Interbank Market deposits for the proposed
duration of such Term in the currency in which such Advance is
to be denominated; or
(b) before the close of business in London (or, in the case of an
Advance requested to be denominated in euros, Brussels) on the
Quotation Date for such Advance, the Agent has been notified
by a Bank or each of a group of Banks to whom in aggregate
more than fifty per cent. of the aggregate amount of such
Advance is (or, in the case of an undrawn Advance, if such
Advance were then made, would be) owed that the rate at which
such deposits were being so offered does not accurately
reflect the cost to it of obtaining such deposits,
then, notwithstanding the provisions of Clause 5 (PAYMENT AND CALCULATION OF
INTEREST):
(i) if paragraph (a) above applies, the duration of that Term
shall be one month or, if less, such that it shall end on the
Final Maturity Date; and
(ii) if either paragraph (a) or (b) above applies, the rate of
interest applicable to each Bank's portion of such Advance
from time to time during such Term shall be the rate per annum
which is the sum of the Applicable Margin at such time and the
rate per annum notified to the Agent by such Bank before the
last day of such Term to be that which expresses as a
percentage rate per annum the cost to such Bank of funding
from whatever sources it may reasonably select (with a view to
minimising such cost
so far as is reasonably practicable in the circumstances) its
portion of such Advance during such Term.
6.2 INABILITY TO FUND If, as a result of any event or circumstance giving rise
to an event referred to in Clause 6.1 (a) or (b) (MARKET DISRUPTION), any Bank
is unable to fund its portion of an Advance during the Term relating thereto in
the currency of such Advance, such Bank shall notify the Agent by no later than
11.30 a.m. (London time) on the Quotation Date for such Advance, the Agent shall
promptly notify the relevant Borrower and the Guarantor and the Guarantor may,
by no later than 1.00 p.m. (London time) on the Quotation Date for the relevant
Term, select that such Advance be denominated in another currency (being either
dollars or euros which in either case is freely available for the funding of
such Advance during such Term) during such Term. The rate of interest applicable
to such Advance during such Term shall be the sum of the Applicable Margin at
such time and the rate per annum determined by the Agent to be the arithmetic
mean (rounded upwards, if not already such a multiple, to the nearest whole
multiple of one thousandth of one per cent.) of the rates (as notified to the
Agent (who shall notify the same to the Guarantor)) at which each of the
relevant Reference Banks was offering to prime banks in the relevant Interbank
Market deposits in the currency of such Advance and for such Term at or about
2.00 p.m. (Amsterdam time) on the Quotation Date for such period and the
provisions of Clause 18.5(c) (BORROWER'S INDEMNITY) shall apply. Otherwise, such
Advance shall be made or shall continue to remain outstanding in the currency
determined in accordance with Clause 4 (UTILISATION OF THE FACILITY) and Clause
18.5(d) (BORROWER'S INDEMNITY) shall apply.
6.3 SUBSTITUTE BASIS If (i) either of those events mentioned at paragraphs (a)
and (b) in Clause 6.1 (MARKET DISRUPTION) occurs in relation to an Advance and
the Term relating thereto or (ii) by reason of circumstances affecting the
London Interbank Market during any period of three consecutive business days
none of the relevant Reference Banks offers deposits in dollars to prime banks
in the London Interbank Market, then:
(a) the Agent shall notify the relevant Borrower, the Guarantor
and the Banks of such event;
(b) within five days of such notification the Agent and the
Guarantor shall enter into negotiations with a view to
agreeing a substitute basis (1) for determining the rates of
interest from time to time applicable to the Advances and/or
(2) upon which the Advances may be maintained (whether in
dollars or some other currency) thereafter and any such
substitute basis that is agreed shall take effect in
accordance with its terms and be binding on each party hereto
Provided that the Agent may not agree any such substitute
basis without the prior consent of each Bank.
PART 4
REPAYMENT AND CANCELLATION
7. REPAYMENT
7.1 REPAYMENT Each Borrower shall repay each Advance made to it in full on the
Repayment Date relating thereto.
7.2 NO OTHER REPAYMENTS No Borrower shall repay all or any part of any Advance
outstanding hereunder except at the times and in the manner expressly provided
herein.
8. CANCELLATION AND PREPAYMENT
8.1 CANCELLATION The Guarantor may, by giving to the Agent not less than ten
business days' prior notice to that effect, cancel the whole or any part (but if
in part in a minimum amount of $50,000,000 and an integral multiple of
$10,000,000) of the Total Commitments. Any such cancellation shall reduce the
Commitment of each Bank rateably.
8.2 VOLUNTARY PREPAYMENT A Borrower may, subject to Clause 18.4 (BROKEN
PERIODS), by giving to the Agent not less than ten business days' prior notice
to that effect, prepay the whole or any part (but if in part in an amount such
that the Dollar Amount of such Advance is reduced by a minimum amount of
$100,000,000 and an integral multiple of $10,000,000) of any Advance together
with interest accrued thereon Provided that no Borrower may reborrow any amount
repaid under this Clause 8.2 and an amount of the Total Commitments equal to any
amount so prepaid shall, upon such prepayment, be cancelled.
8.3 NOTICE OF CANCELLATION AND PREPAYMENT Any notice of cancellation or
prepayment given by a Borrower pursuant to Clause 8.1 (CANCELLATION) or Clause
8.2 (VOLUNTARY PREPAYMENT) shall be irrevocable and shall specify the date upon
which such cancellation or prepayment is to be made and the amount of such
cancellation or prepayment.
8.4 REPAYMENT OF A BANK'S SHARE OF THE LOAN If any Bank claims indemnification
from an Obligor under Clause 9.2 (TAX INDEMNITY) or Clause 11.1 (INCREASED
COSTS) or an Obligor is required to make a payment to a Bank under Clause 9.1
(TAX GROSS-UP) or Clause 11.3 (ILLEGALITY), the Guarantor may within thirty days
thereafter and by not less than ten business days' prior notice to the Agent
(which notice shall be irrevocable), cancel such Bank's Commitment whereupon
such Bank shall cease to be obliged to participate in further Advances and its
Commitment shall be reduced to zero.
8.5 MANDATORY PREPAYMENT FROM DISPOSALS Notwithstanding the provisions of Clause
15.7 (DISPOSALS), the Guarantor shall procure that within 5 business days of
receipt (or, if 31 December 1999 falls prior to the end of such 5 business day
period, on 31 December 1999) by any member of the VNU Group of any Net Disposal
Proceeds as a result of:
(a) the disposal, if any, of the Newspaper Group or of any of the assets or
revenues of the Newspaper Group; or
(b) any other asset (other than (x) any disposal permitted by paragraphs
(a) - (e) of Clause 15.7 and (y) any disposal (if any) of the Newspaper
Group or any of the assets or revenues of the Newspaper Group) to the
extent that the Net Disposal Proceeds, when aggregated with the Net
Disposal Proceeds of all other disposals made after the date hereof,
exceed NLG 500,000,000 (a "DISPOSALS PROCEEDS EXCESS")
(other than amounts which the recipient of the disposal proceeds is not lawfully
able to pay to the relevant Borrower or the Guarantor for the purposes of this
Clause 8.5 (having made all reasonable efforts to overcome such unlawfulness and
to make such payment) and in respect of which the Guarantor has delivered to the
Agent a copy of written advice to the Guarantor from reputable legal counsel
confirming that such payment to the relevant Borrower or the Guarantor would not
be lawful in any material respect, such copy to be certified as a true copy and
warranted, so far as the Guarantor is aware, as not omitting any other advice
received by any member of the Group as to such lawfulness which would render
such first-mentioned advice untrue or misleading in any material respect) an
amount equal to such Disposals Proceeds Excess (or, if not denominated in
dollars or euros, its equivalent in dollars or euros) is either:
(i) (if no Event of Default or Potential Event of Default (which,
in the case of a Potential Event of Default, has been advised
by the Agent as a Potential Event of Default) has occurred
which is continuing) paid into one of the Escrow Accounts
(such that the amount thereafter standing to the credit of
such Escrow Account is matched so far as possible by an
Advance or Advances made in the currency of such Escrow
Account and to the Obligor in whose name such Escrow Account
shall have been opened) for application by the Agent in
repayment of Advances on the last day of their respective
Terms, or on such earlier date as the relevant Advance becomes
payable under Clause 16.18 or (unless the date of receipt of
such Disposals Proceeds Excess falls after 31 December 1999)
on 31 December 1999, whichever occurs first; or
(ii) applied in immediate prepayment of Advances
provided that upon such receipt an amount of the Total Commitments equal to the
amount of such Disposals Proceeds Excess (or its equivalent in dollars) shall be
immediately cancelled (which cancellation will not, for the avoidance of doubt,
in itself cause an immediate prepayment of the Loan).
8.6 MANDATORY PREPAYMENT FROM PROCEEDS OF SHARE ISSUES The Guarantor shall
procure that the proceeds (after deducting fees and expenses) of the issue after
the date of this Agreement of any share capital of the Guarantor (other than
under supervisory or executive directors' or employees' share incentive schemes
of the VNU Group) are applied forthwith in accordance with Clause 8.5 (i) or
(ii) as if such proceeds were a Disposal Proceeds Excess and an amount of the
Total Commitments equal to such proceeds (or its equivalent in dollars) are
immediately cancelled (which cancellation will not, for the avoidance of doubt,
in itself cause an immediate prepayment of the Loan).
8.7 MANDATORY PREPAYMENT FROM ISSUE OF DEBT The Guarantor shall procure that if
any member of the VNU Group incurs any Restricted Indebtedness other than:
(a) any Restricted Indebtedness permitted to be incurred under, and which
is applied in accordance with, Clause 15.17(a) (RESTRICTED
INDEBTEDNESS); and
(b) any Restricted Indebtedness raised under any arrangement or agreement
for the provision of Restricted Indebtedness in effect at the date
hereof (and, for the avoidance of doubt, the utilisation of an existing
facility shall not be construed as entering into a new agreement or
arrangement)
an amount equal to such Restricted Indebtedness (or its equivalent in dollars or
euros) after deducting any fees and expenses (in the case of any Restricted
Indebtedness represented by any public debt securities) shall be applied in
accordance with Clause 8.5 (i) or (ii) as if such amount were a Disposal
Proceeds Excess and an amount of the Total Commitments equal to such amount (or
its equivalent in dollars) shall be cancelled (which cancellation will not, for
the avoidance of doubt, in itself cause an immediate prepayment of the Loan).
8.8 TRANSFER OF ADVANCES If:
(i) any Bank claims indemnification from an Obligor under Clause
9.2 (TAX INDEMNITY) or Clause 11.1 (INCREASED COSTS) or an
Obligor is required to make a payment to a Bank under Clause
9.1 (TAX GROSS-UP) and the amount such Obligor would be
required to pay could be avoided or reduced by transferring
the relevant Advance or Advances to another Borrower; or
(ii) Clause 11.3 (ILLEGALITY) applies in relation to a Bank and the
illegality could be avoided by transferring the relevant
Advance or Advances to another Borrower; or
(iii) Clause 16.10 (LOSS OF LEGAL STATUS) applies in relation to a
Borrower; or
(iv) any Borrower (other than the Guarantor) ceases to be a
subsidiary of the Guarantor; or
(v) Clause 16.15 (ILLEGALITY) applies (or would apply with the
passage of time) in relation to a Borrower and the
applicability of such Clause could be avoided by transferring
the relevant Advance or Advances to another Borrower,
then the relevant Borrower may transfer in accordance with Clause 26.11
(TRANSFERS OF ADVANCES BY BORROWERS) all or any Advances drawn by it (or
previously transferred to it in accordance with Clause 26.11 (TRANSFERS OF
ADVANCES BY BORROWERS)) to another Borrower to which none of (i) to (v) above
applies.
PART 5
RISK ALLOCATION
9. TAXES
9.1 TAX GROSS-UP All payments to be made by any of the Obligors to a Bank or the
Agent hereunder shall be made free and clear of and without deduction for or on
account of tax unless such Obligor is required to make such a payment subject to
the deduction or withholding of tax, in which case the sum payable by such
Obligor in respect of which such deduction or withholding is required to be made
shall be increased to the extent necessary to ensure that, after the making of
the required deduction or withholding, such Bank or the Agent receives and
retains (free from any liability in respect of any such deduction or
withholding) a net sum equal to the sum which it would have received and so
retained had no such deduction or withholding been made or required to be made.
9.2 TAX INDEMNITY Without prejudice to the provisions of Clause 9.1 (TAX
GROSS-UP), if any Bank or the Agent on its behalf is required to make any
payment on account of tax (not being a tax imposed on and calculated by
reference to the net income paid to and received by either of its Facility
Offices by the jurisdiction in which it is incorporated or in which such
Facility Office is located) or otherwise on or in relation to any sum received
or receivable hereunder by such Bank or Agent on its behalf or calculated by
reference to the amount of such Bank's share of the Advances (including any sum
received or receivable under this Clause 9) or any liability in respect of any
such payment is asserted, imposed, levied or assessed against such Bank or Agent
on its behalf, the relevant Obligor shall, upon demand of the Agent, promptly
indemnify such Bank or the Agent against such payment or liability, together
with any interest, penalties, costs and expenses payable or incurred in
connection therewith.
9.3 CLAIMS BY BANKS A Bank intending to make a claim pursuant to Clause 9.2 (TAX
INDEMNITY) shall notify the Agent of the event by reason of which it is entitled
to do so, whereupon the Agent shall notify the Guarantor thereof Provided that
nothing herein shall require such Bank to disclose any confidential information
relating to the organisation of its affairs.
9.4 EXCEPTIONS TO TAX GROSS-UP AND TAX INDEMNITY No additional amounts shall be
payable to a Bank or the Agent under Clauses 9.1 (TAX GROSS-UP) or 9.2 (TAX
INDEMNITY) in respect of any payment from an Obligor if the Bank or Agent to
whom the relevant payment is to be made has failed or is unable to provide
promptly on request information, documents and other evidence concerning its
nationality, residence or identity or to duly make and deliver any form, claim,
declaration or other similar document or satisfy any information, reporting or
other requirement which is required or imposed by a statute, treaty, regulation
or administrative practice of a taxing jurisdiction as a precondition to
exemption from all or part of any taxes unless such failure or inability results
from the failure of the relevant Obligor to comply with its obligations under
the relevant statute, treaty or regulation.
9.5 TAX CREDITS If any Obligor pays any additional amount under Clauses 9.1 (TAX
GROSS-UP) or 9.2 (TAX INDEMNITY) (a "TAX PAYMENT") and any Bank or the Agent
obtains a refund of, reduction of, or remission for tax, or credit against tax
by reason of that Tax Payment (a "TAX CREDIT"), and such Bank or the Agent is
able to identify the Tax Credit as being attributable to the Tax Payment, then
such Bank or the Agent shall promptly after receipt thereof reimburse to the
relevant Obligor such amount as the Bank or the Agent shall reasonably determine
to be the proportion of the Tax Credit as will leave the Bank or the Agent
(after that reimbursement) in no better or worse position than it would have
been if the Tax Payment has not been required. The Bank or the Agent shall have
an absolute discretion as to the extent, order and manner in which it claims any
Tax Credit. None of the Banks and the Agent shall be obliged to disclose any
information regarding its tax affairs or computations to any Obligor and any
certificates by a Bank or the Agent of the amount of any Tax
Credit obtained by it shall, in the absence of manifest error, be conclusive
evidence of the amount thereof.
10. TAX RECEIPTS
10.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX If, at any time, any of the
Obligors is required by law to make any deduction or withholding from any sum
payable by it hereunder (or if thereafter there is any change in the rates at
which or the manner in which such deductions or withholdings are calculated),
such Obligor shall promptly notify the Agent.
10.2 EVIDENCE OF PAYMENT OF TAX If any of the Obligors makes any payment
hereunder in respect of which it is required to make any deduction or
withholding, it shall pay the full amount required to be deducted or withheld to
the relevant taxation or other authority within the time allowed for such
payment under applicable law and shall deliver to the Agent for each Bank,
within thirty days after it has made such payment to the applicable authority,
an original receipt (or a certified copy thereof) issued by such authority
evidencing the payment to such authority of all amounts so required to be
deducted or withheld in respect of that Bank's share of such payment or such
other document evidencing the same as the respective Bank or Agent to whom such
payment is to be made, shall reasonably agree as satisfactory for the purpose of
this Clause 10.2.
10.3 BANKS' REPRESENTATION Each of the Banks hereby represents on the date
hereof (or, if later, the date upon which it becomes a party to this Agreement)
and on each date upon which it changes its Facility Office, that all payments
received or receivable by it hereunder from a Borrower (either directly or via
the Agent) may be made without deduction or withholding on account of tax.
11. CHANGES IN CIRCUMSTANCES
11.1 INCREASED COSTS If, by reason of (i) any change occurring after the date
hereof in law or in its official application and/or (ii) compliance with any
Capital Adequacy Requirement or any other request from or requirement of any
central bank or other fiscal, monetary or other authority which have the
supervision of the relevant banks who must observe or who are accustomed to
observing such requests or requirements and which is made or occurs after the
date hereof:
(a) a Bank or any holding company of such Bank is unable to obtain
the rate of return on its overall capital which it would have
been able to obtain but for such Bank's entering into or
assuming or maintaining a commitment or performing its
obligations (including its obligation to participate in the
making of Advances) under this Agreement;
(b) a Bank or any holding company of such Bank incurs a cost as a
result of such Bank's entering into or maintaining a
commitment or performing its obligations (including its
obligation to participate in the making of Advances) under
this Agreement;
(c) there is any increase in the cost to a Bank or any holding
company of such Bank of funding or maintaining all or any of
the loans comprised in a class of loans specified by the
relevant authority formed by or including such Bank's share of
the Advances; or
(d) a Bank or any holding company of such Bank becomes liable to
make any payment on account of tax or otherwise (not being a
tax imposed on and calculated by reference to the net income
paid to and received by either of such Bank's Facility Offices
by the jurisdiction in which it is incorporated or in which
such Facility Office is located) on or calculated by reference
to the amount of such Bank's share of the
Advances and/or to any sum received or receivable by it
hereunder;
then each Borrower shall, from time to time within 20 business days of demand of
the Agent, pay to the Agent for the account of that Bank amounts sufficient to
put that Bank or its holding company (as the case may be) in no better or worse
position than before the relevant change, Capital Adequacy Requirement, request
or other requirement resulting in (1) such reduction in the rate of return on
capital, (2) such cost, (3) such increased cost (or such proportion of such
increased cost as is, in the opinion of that Bank, attributable to its
participating in the funding or maintaining of Advances), or (4) such liability
and PROVIDED THAT where such reduction in the rate of return on capital, cost,
increased cost (or proportion thereof) or liability involves the relevant Bank
in making a payment, no Borrower shall be obliged to make any payment in respect
thereof under this Clause 11.1 until the Bank has made the relevant payment.
11.2 INCREASED COSTS CLAIMS A Bank intending to make a claim pursuant to Clause
11.1 (INCREASED COSTS) shall notify the Agent in writing of the event (together
with reasonable details and evidence of the relevant circumstances) by reason of
which it is entitled to do so, whereupon the Agent shall notify each of the
Borrowers in writing thereof Provided that nothing herein shall require such
Bank to disclose any confidential information relating to the organisation of
its affairs. Notwithstanding the provisions of Clause 11.1 (INCREASED COSTS), no
Bank shall be entitled to make any claim under Clause 11.1 (INCREASED COSTS):
(i) in respect of any reduction in such rate of return, cost,
increased cost (or such proportion thereof) or liability as is
referred to in Clause 11.1 to the extent that the same is
compensated for by the operation of Clause 9.2 (TAX
INDEMNITY);
(ii) in respect of any reduction in such rate of return, cost,
increased cost (or such proportion thereof) or liability
resulting from any change in the taxation or rate of taxation
on the overall net income or gross turnover of a Bank imposed
in the jurisdiction in which such Bank's principal office is
for the time being located or on the net income or gross
turnover of a Bank's Facility Office imposed in the
jurisdiction in which that Facility Office is located;
(iii) resulting from a failure by that Bank to comply with any
request from or requirement of any central bank or other
fiscal, monetary or other authority (whether or not having
the force of law); or
(iv) in respect of any reduction in such rate of return, cost,
increased cost (or such proportion thereof) or liability for
which (and to the extent that) that Bank has received
compensation in respect thereof.
11.3 ILLEGALITY If, at any time, it is unlawful for a Bank to make, fund or
allow to remain outstanding all or part of its share of the Advances made or to
be made to any Borrower, then that Bank shall, promptly after becoming aware of
the same, deliver to the Guarantor through the Agent a note to that effect
(together with evidence of the relevant unlawfulness) and (subject to Clause
11.4 (MITIGATION):
(a) such Bank shall not thereafter be obliged to participate in
the making of any Advances to the relevant Borrower or
Borrowers;
(b) if the unlawfulness relates to its Commitment, either such
Borrower or Borrowers shall cease to be a Borrower hereunder
(if there are no Advances owing by such Borrower or Borrowers
and no other amounts owing by such Borrower or Borrowers
hereunder) and, if the relevant Borrower is the Guarantor the
amount of its Commitment shall be immediately reduced to zero;
and
(c) if the Agent on behalf of such Bank so requires, each
respective Borrower shall on such date as the Agent shall have
specified (being no earlier than the last day of any
applicable grace period which the relevant law permits) repay
such Bank's share of any outstanding Advances made to such
Borrower together with accrued interest thereon and all other
amounts owing to such Bank hereunder, without prejudice to
Clause 8.4 (REPAYMENT OF A BANK'S SHARE OF THE LOAN).
11.4 MITIGATION If circumstances are such that an Obligor is required to make a
payment or a Bank intends to claim indemnification from an Obligor under Clause
9.1 (TAX GROSS-UP), Clause 9.2 (TAX INDEMNITY), Clause 11.1 (INCREASED COSTS) or
Clause 11.3 (ILLEGALITY) applies such Bank shall negotiate in good faith with
the Agent and the Obligors and use all reasonable endeavours to take such steps
as are reasonably open to it to mitigate or remove those circumstances
(including a change in its Facility Office or the transfer of its rights,
benefits and obligations hereunder to another financial institution acceptable
to the Obligors and willing to participate in the Facility) with a view to
mitigating the effect of such circumstances on the Obligors Provided that
nothing in this Clause 11.4 (MITIGATION) shall oblige any Bank to take any steps
which it considers may have an adverse effect on its business, operations or
financial condition nor shall such Bank be required to disclose any information
relating thereto which it considers to be confidential.
PART 6
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
12. REPRESENTATIONS
12.1 OBLIGORS' REPRESENTATIONS Each of the Obligors (on the date of this
Agreement) and each Additional Borrower (on the date on which it becomes a party
to this Agreement) respectively makes the representations and warranties set out
below (in relation only to itself, in the case of any Obligor other than VNU
N.V.) and acknowledges that the Agent, the Arrangers and the Banks have entered
into this Agreement in reliance on those representations and warranties.
(A) STATUS AND DUE AUTHORISATION (i) It is a corporation duly organised under
the laws of its jurisdiction of incorporation with power to xxx and be sued in
its own name, to carry on the business it carries on from time to time and to
enter into this Agreement and to exercise its rights and perform its obligations
hereunder and (ii) all corporate and other action required to authorise its
execution of this Agreement and its performance of its obligations hereunder has
been duly taken.
(B) CLAIMS PARI PASSU Under the laws of its jurisdiction of incorporation in
force at the date hereof (or, in relation to any Additional Borrower, at the
date on which it becomes a party to this Agreement), the claims of each of the
Agent, the Arrangers and the Banks against it under this Agreement will rank
PARI PASSU with the monetary claims of all its other unsecured and
unsubordinated creditors save those whose claims are preferred solely by any
bankruptcy, insolvency, liquidation or other similar laws of general application
or otherwise by mandatory law.
(C) GOVERNING LAW AND JUDGMENTS In any proceedings taken in its jurisdiction of
incorporation in relation to this Agreement, the choice of English law as the
governing law of this Agreement and any judgment obtained in England will be
recognised and enforced on the basis of and subject to the limitations imposed
by the 1980 Rome Convention on the Law Applicable to Contractual Obligations and
by the Convention on Jurisdiction and the Enforcement of Judgements in Civil and
Commercial matters of 27 September 1968 (as amended) and the rules and
regulations promulgated pursuant thereto.
(D) VALIDITY AND ADMISSIBILITY IN EVIDENCE All acts, conditions and things
required to be done, fulfilled and performed in order (a) to enable it lawfully
to enter into, exercise its rights under and perform and comply with the
obligations expressed to be assumed by it in this Agreement, (b) to ensure that
the obligations expressed to be assumed by it in this Agreement are legal, valid
and binding and (c) to make this Agreement admissible in evidence in its
jurisdiction of incorporation have been done, fulfilled and performed.
(E) NO FILING OR STAMP TAXES Under the laws of its jurisdiction of incorporation
in force at the date hereof (or, in relation to any Additional Borrower, at the
date on which it becomes a party to this Agreement), it is not necessary that
this Agreement be filed, recorded or enrolled with any court or other authority
in such jurisdiction or that any stamp, registration or similar tax be paid on
or in relation to this Agreement.
(F) NO WINDING-UP No Obligor nor any member or members of the VNU Group the
aggregate net revenues of which, consolidated if applicable, represent more than
10% of the consolidated net revenues of the VNU Group has or have taken any
corporate action nor have any other steps been taken or legal proceedings been
started or (to the best of the its knowledge and belief) threatened against such
Obligor or such member or members of the VNU Group for its or their winding-up,
dissolution or administration or for the appointment of a liquidator, receiver,
administrator, administrative receiver or similar officer of it or them or of
any or all of its or their assets or revenues.
(G) NO MATERIAL DEFAULTS To the best of its knowledge and belief, no member of
the VNU Group
is in breach of or in default under any agreement to which it is a party or
which is binding on it or any of its assets to an extent or in a manner which
could reasonably be expected to have a material adverse effect on the financial
condition of the VNU Group taken as a whole and the ability of VNU N.V. (as
Borrower and/or Guarantor, as appropriate) to perform or comply with its payment
obligations under this Agreement.
(H) BINDING OBLIGATIONS The obligations expressed to be assumed by it in this
Agreement are legal and valid obligations binding on it in accordance with the
terms hereof save as the same may be affected by any bankruptcy, insolvency,
liquidation or other similar laws of general application or laws relating to the
protection of creditors' rights.
(I) NO MATERIAL PROCEEDINGS No litigation, arbitration or proceeding is taking
place, pending, or to its knowledge threatened against any member of the VNU
Group or any of the assets of any member of the VNU Group which could reasonably
be expected to have a material adverse effect on the financial condition of the
VNU Group taken as a whole and the ability of VNU N.V. (as Borrower and/or
Guarantor, as appropriate) to perform its payment obligations under this
Agreement.
(J) ORIGINAL FINANCIAL STATEMENTS In relation to the Guarantor, its Original
Financial Statements were prepared in accordance with accounting principles
generally accepted in The Netherlands and consistently applied and give (in
conjunction with the notes thereto) a true and fair view of its financial
condition or, as the case may be, the financial condition of the VNU Group at
the date as of which they were prepared and its results or, as the case may be,
the results of the VNU Group's operations during the financial year then ended.
(K) NO MATERIAL ADVERSE CHANGE Save as may have been disclosed pursuant to any
public announcement, since publication of the Original Financial Statements,
there has been no material adverse change in the financial condition of the VNU
Group taken as a whole which could reasonably be expected to result in the
consolidated net earnings of the VNU Group being less than zero in respect of
1999.
(L) FULL DISCLOSURE All of the written information supplied by the Guarantor as
at the date of this Agreement to the Agent in connection herewith is true,
complete and accurate in all material respects and as at the date of this
Agreement no material information has not been disclosed, the omission of which
makes any written information provided materially misleading.
(M) NEW INFORMATION All written information from time to time provided to the
Agent or any of the Banks by the Guarantor shall, as at the time it is provided,
be true, complete and accurate in all material respects as at the time it is
provided and, as at the time it is provided, no material information shall not
have been disclosed, the omission of which would make such written information
materially misleading.
(N) ENCUMBRANCES As at the date of this Agreement no encumbrance which would be
prohibited by Clause 15.6 (NEGATIVE PLEDGE) exists over all or any of the
present or future revenues or assets of:
(i) any of the Obligors; or
(ii) any member or members of the VNU Group the aggregate net revenues of
which, consolidated if applicable, when aggregated with the net
revenues, consolidated if applicable, of each other member of the VNU
Group which has created any encumbrance on all or any part of its
respective present or future assets or revenues to secure any Specified
Indebtedness which would be prohibited under Clause 17.6 (NEGATIVE
PLEDGE), represent 10% or more of the consolidated net revenues of the
VNU Group
to secure any Specified Indebtedness.
(O) NO OBLIGATION TO CREATE SECURITY Its execution of this Agreement and the
Transaction Documents and its exercise of its rights and performance of its
obligations hereunder or thereunder will not (save as required hereunder) result
in the existence of nor oblige:
(i) any of the Obligors; or
(ii) any member or members of the VNU Group the aggregate net revenues of
which, consolidated if applicable, when aggregated with the net
revenues, consolidated if applicable, of each other member of the VNU
Group which has created any encumbrance on all or any part of its
respective present or future assets or revenues to secure any Specified
Indebtedness which would be prohibited under Clause 15.6 (NEGATIVE
PLEDGE) represent 10% or more of the consolidated net revenues of the
VNU Group
to create any encumbrance over all or any of its or their present or future
revenues or assets to secure any Specified Indebtedness which would be
prohibited under Clause 15.6 (NEGATIVE PLEDGE).
(P) EXECUTION OF THIS AGREEMENT Its execution of this Agreement and the
Transaction Documents and its exercise of its rights and performance of its
obligations hereunder do not and will not (save as specified in the Disclosure
Letter and, prior to the date of delivery of the first notice of Drawdown
hereunder, subject to the provisions of the WET OP DE ONDERNEMINGSRADEN
regarding the Facility and the issue by VNU N.V. of the guarantee pursuant to
Clause 17 (GUARANTEE AND INDEMNITY) of this Agreement):
(i) conflict with any agreement, mortgage, bond or other instrument or
treaty to which it is a party or which is binding upon it or any of its
assets in such a manner which might give rise to a claim against the
Arrangers, the Agent, the Banks or any of them;
(ii) conflict with its constitutive documents and rules and regulations
implemented in its jurisdiction of incorporation; or
(iii) conflict with any applicable law, regulation or official or judicial
order of its jurisdiction of incorporation.
(Q) PRIVATE AND COMMERCIAL ACTS Its execution of this Agreement constitutes, and
its exercise of its rights and performance of its obligations hereunder will
constitute, private and commercial acts done and performed for private and
commercial purposes.
(R) OWNERSHIP OF THE BORROWERS Each Borrower (other than the Guarantor) is a
subsidiary, directly or indirectly, of the Guarantor.
(S) EVENTS OF DEFAULT No Event of Default has, to the best of its knowledge and
belief, occurred which has not been remedied or waived.
(T) INFORMATION REGARDING TARGET AND DUE DILIGENCE The Parent has carried out
all due diligence which in the Guarantor's opinion is appropriate in connection
with the Acquisition and, so far as the Guarantor is aware, such due diligence
has not disclosed any material facts which have not been disclosed to the Banks
which could reasonably be expected to adversely affect a Bank's decision to
provide the financing contemplated by this Agreement. Furthermore, the Guarantor
is not on the date hereof aware of any material facts not disclosed which would
make such information misleading in any material respect.
(U) ENVIRONMENTAL CLAIMS As at the date on which this representation and
warranty is made or repeated, no Environmental Claim has been commenced against
any member of the VNU Group and
so far as the Guarantor is aware no member of the VNU Group has done or omitted
to do anything which is reasonably likely to lead to an Environmental Claim
where, in the case of any of the foregoing, such claim could be reasonably
likely to have a material adverse effect on the financial condition of the VNU
Group taken as a whole and the ability of VNU N.V. (as Borrower and/or
Guarantor, as appropriate) to perform its payment obligations under this
Agreement.
(V) TENDERED SHARES POST-ACQUISITION Upon satisfaction of each of the Conditions
to the Offer (as amended or waived in accordance with Clause 15.12 and 15.13(d))
and at the time of first utilisation of the Facility and the application of the
proceeds of that utilisation, the Purchaser shall (or shall simultaneously with
first utilisation of the Facility and the application of the proceeds of that
utilisation):
(i) have acquired (under the terms and conditions of the Tender Offer
Documents) and beneficially own Tendered Shares satisfying the Minimum
Condition and such Tendered Shares shall at such time be free and clear
of all encumbrances and options and restrictions to purchase imposed by
applicable law or otherwise, shall be available for purchase in
accordance with the terms set forth in the Tender Offer Documents and
the Purchaser shall be obliged to pay the purchase price for such
Tendered Shares;
(ii) have accepted for payment (or shall accept for payment simultaneously
with utilisation of the Facility) the Tendered Shares satisfying the
Minimum Condition; and
(iii) be entitled to vote the Tendered Shares acquired on first utilisation
of the Facility in favour of the Merger, the provisions of Section 203
of the Delaware General Corporation Law ("DGCL") shall not prevent the
immediate consummation of the Merger and in the event that Section 253
of the DGCL is inapplicable and unavailable to effectuate the Merger,
the affirmative vote of the holders of a majority of the outstanding
Shares entitled to vote at the Stockholders Meeting (as defined in
Section 6.1(a) of the Merger Document) with respect to the adoption of
the Merger Document is the only vote of the holders of any class or
series of Target's capital stock or other securities required in
connection with the consummation by Target of the Merger and the other
transactions contemplated by the Merger Document to be consummated by
Target.
(W) TENDER OFFER PERMITS The Transactions and the Transaction Documents comply,
and the purchase of the Tendered Shares pursuant to the Tender Offer will comply
in all material respects, with all provisions of all applicable laws and
regulations of the U.S. and each State thereof (except state laws regulating
corporate takeovers to the extent that such state laws have been judicially
determined to be inapplicable to the Tender Offer or invalid). Each material
permit, license, approval and consent required in relation to the Transaction
Documents has been given or obtained and is in full force and effect, and no
event has occurred which permits (or with the passage of time would permit) the
revocation or termination of any such permit, license, approval or consent or
the imposition of any restriction thereon.
(X) TENDER OFFER CONDITIONS There has been no amendment, waiver, variation or
revision of:
(a) the Conditions to the Offer or the terms of the Merger Document which
would cause a breach of Clause 15.12 (TENDER OFFER RESTRICTIONS);
(b) the terms of the Tender Offer as set out in the Transaction Documents
relating to the price offered per Share above that which may from time
to time be agreed between the Guarantor and the Arrangers, which would
alter the terms of the Offer such that it would apply to shares or
securities other than the Shares (as defined in the Merger Document in
its executed form dated 15 August, 1999) or would not be a cash offer
for all such Shares or which requires the Target to cancel, terminate
or delete any stock options or stock option plans or other plans
providing for the issuance, transfer or grant of any capital stock of
the Target or which requires the Target to ensure that any holder of a
stock option or a participant in a Stock Option Plan shall have no
right to acquire any capital stock of the Target, the Parent or the
surviving corporation following the Merger (all as contemplated in
Section 3.2 of the Merger Document in its executed form date 15 August,
1999).
(Y) NO VIOLATION OF THE REGULATIONS The borrowings made hereunder will not
violate, or give rise to a violation of, any of the Regulations. No member of
the VNU Group or any agent acting in their behalf has taken or will take any
action which would cause this Agreement or any of the documents or instruments
delivered pursuant hereto, any borrowing hereunder or use of proceeds thereof to
violate any Regulation or to violate the Exchange Act or any applicable US
federal or state securities laws.
(Z) NOT SUBJECT TO REGULATION It is not subject to regulation under the United
States Public Utility Holding Company Act of 1935, the United States Federal
Power Act or the United States Investment Company Act of 1940 or to any United
States federal or state statute or regulation limiting its ability to incur
indebtedness; none of the Obligors, the Parent and the Purchaser is an
"investment company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the U.S.
Investment Company Act of 1940 (15 U.S.C. xx.xx. 80a-1. et seq.); and none of
the transactions contemplated by this Agreement or the Transaction Documents
will violate such Act.
(AA) US SUBSIDIARIES
(a) The aggregate liabilities of each US Subsidiary and the ERISA
Affiliates to all Multiemployer Plans in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of
each such Multiemployer Plan ended prior to the date hereof, are not of
a level which would have a material adverse effect upon the financial
condition of the VNU Group taken as a whole;
(b) there are no Employee Plans which are not in compliance in all material
respects in form and operation with ERISA and the Code;
(c) there is no Employee Plan which is intended to be qualified under
Section 401(a) of the Code which has not received from the IRS a
favourable determination letter that is to be so qualified as to form,
and, to the knowledge of the Guarantor, nothing has occurred since the
date of such determination that would adversely affect such
determination;
(d) the fair market value of the assets of each Employee Plan subject to
Title IV of ERISA is not less than the present value of the "benefit
liabilities" (within the meaning of Section 4001(a)(16) of ERISA) under
such Employee Plan as of the date of the most recent actuarial
valuation of such plan determined using the actuarial assumptions and
method used by the actuary to such Employee Plan in its most recent
valuation of such Employee Plan;
(e) there are no actions, suits, or claims pending against or with respect
to any Employee Plan (other than routine claims for benefits) which
would cause any US Subsidiary to incur a material liability or to the
knowledge of such US Subsidiary, which could reasonably be expected to
be asserted against or with respect to any Employee Plan which would
cause such US Subsidiary to incur a material liability;
(f) no US Subsidiary has failed to make all material contributions to or
under each such Employee Plan, or any contract or agreement requiring
contribution to an Employee Plan;
(g) none of any US Subsidiary or any ERISA Affiliate has ceased operations
at a facility so as to become subject to the provisions of Section
4062(e) of ERISA, withdrawn as a substantial employer so as to become
subject to the provisions of Section 4063 of ERISA or ceased making
contributions to any Plan subject to Section 4064(a) of ERISA to which
it made contributions each in a manner which would cause such US
Subsidiary to incur a material liability; and
(h) none of such US Subsidiary nor any of the ERISA Affiliates has incurred
or reasonably expects to incur any material liability to PBGC other
than for premiums under Section 4007 of ERISA
to an extent which, in any case, could reasonably be expected to have a material
adverse effect on the financial condition of the VNU Group taken as a whole and
the ability of VNU N.V. (as Borrower and/or Guarantor, as appropriate) to
perform or comply with its payment obligations under this Agreement.
(BB) YEAR 2000 The Guarantor believes (having made due enquiry) that the Year
2000 problem (that is, the risk that any Computer System used by any member of
the VNU Group may be unable to recognise and perform properly date-sensitive
functions involving a date before, on or after 31 December 1999) is not
reasonably likely to have a material adverse effect on the financial condition
of the VNU Group taken as a whole and the ability of VNU N.V. (as Borrower
and/or Guarantor, as appropriate) to perform its payment obligations under this
Agreement.
(AC) APPROVALS The Guarantor, the Parent and the Purchaser is, in relation to
the Tender Offer, in compliance in all material respects with all requirements
of the Regulations and applicable US federal and state securities laws except
where failure to comply could not reasonably be expected to lead to a
misrepresentation under Clause 12.1(v) or to lead to a material adverse effect
on the business or financial condition of the VNU Group taken as a whole and on
the ability of VNU N.V. to perform its payment obligations hereunder (either as
Borrower or Guarantor) in a timely manner (but without prejudice to Clause 15.12
(b)).
(AD) NO HOSTILE OFFER The Board of Directors of Target has not withdrawn its
approval or recommendation of the Tender Offer, the Merger Document or the
Merger and has not recommended an alternative Acquisition Proposal made by a
person other than the Parent or another member of the VNU Group.
12.2 REPETITION On the date of each Notice of Drawdown and on the date of the
making of each Advance, each of the representations and warranties contained in
Clause 12.1 (OBLIGOR'S REPRESENTATIONS) (save for the representations and
warranties contained in Xxxxxx 00.0 (x)(xx), (x), (x), (x), (x), (x), (x), (x),
(x), (x), (x) and, following the date upon which the Purchaser pays for the
Tendered Shares satisfying the Minimum Condition, (v), (x) and (ad)) shall be
repeated by each Obligor by reference to the facts and circumstances then
subsisting provided that any reference to "Original Financial Statements" shall
be deemed to be a reference to the most recent set of annual audited
consolidated financial statements most recently delivered to the Agent pursuant
to Clause 13.1 (ANNUAL STATEMENTS) Provided further that no representations of a
Borrower shall be repeated unless there are any Advances or any other sums owing
by such Borrower hereunder or that Additional Borrower has delivered the
relevant Notice of Drawdown and/or is to be the Borrower of the relevant Advance
mentioned in this Clause 12.2.
13. FINANCIAL INFORMATION
13.1 ANNUAL STATEMENTS Each Original Borrower shall as soon as the same become
available, but in any event within 120 days after the end of each of its
financial years, deliver to the Agent in
sufficient copies for the Banks, its financial statements (consolidated in the
case of VNU N.V.) for such financial year.
13.2 SEMI-ANNUAL STATEMENTS The Guarantor shall as soon as the same become
available, but in any event within 90 days after the end of the first half of
each of its financial years, deliver to the Agent in sufficient copies for the
Banks, the consolidated financial statements of the VNU Group for such period.
13.3 OTHER FINANCIAL INFORMATION The Guarantor shall from time to time on the
request of the Agent, furnish the Agent with such information about the business
and financial condition of the VNU Group as the Agent may reasonably require,
provided that such disclosure does not conflict with the requirements of the
Amsterdam Stock Exchange and shall provide the Agent in sufficient copies for
the Banks, with a copy of the Tender Offer Document as soon as the same is filed
with the SEC.
13.4 REQUIREMENTS AS TO FINANCIAL STATEMENTS The Guarantor shall ensure that
each set of financial statements delivered by it pursuant to Clause 13.1 (ANNUAL
STATEMENTS) has been audited by an internationally recognised firm of
independent auditors licensed to practise in The Netherlands and that such
financial statements are accompanied by a statement from such auditors that the
financial statements give a true and fair view of the financial position of the
VNU Group as at the end of the period to which such financial statements relate
and of the relevant results of its operations during such period.
14. FINANCIAL CONDITION
14.1 INTEREST COVER The Guarantor shall ensure that for each financial year of
the Guarantor the ratio of Adjusted EBITDA to Net Interest Expense (as evidenced
by the Guarantor's most recent audited annual consolidated statements from time
to time) is equal to or greater than 3:1.
14.2 DEFINITIONS OF FINANCIAL TERMS In this Agreement:
"EBITDA" means, in respect of any financial year, the VNU Group's operating
income for that financial year PLUS depreciation and amortisation charged to the
consolidated profit and loss account of the VNU Group during that financial
year.
"ADJUSTED EBITDA" means, in respect of any financial year, EBITDA for such
financial year PLUS equity in operating income of non-consolidated subsidiaries
for such financial year (but only to the extent such equity does not exceed 10%
of EBITDA).
"NET INTEREST EXPENSE" means, in respect of any financial year, interest expense
less interest income of the VNU Group for that financial year (in which is
included the PRO RATA share of Interest Expenses MINUS Interest Income of
non-consolidated subsidiaries for which equity accounting is applied).
14.3 ACCOUNTING TERMS All accounting expressions which are not otherwise defined
herein shall be construed in accordance with generally accepted accounting
principles in The Netherlands. References in this Clause 14 to capitalised and
other accounting terms which are not defined herein shall be construed in
accordance with corresponding terms used in, and applying the same accounting
policies applied in compiling the annual audited consolidated financial
statements of the Guarantor for its financial year ended 31 December 1998.
15. COVENANTS
15.1 MAINTENANCE OF LEGAL VALIDITY Each of the Obligors shall obtain, comply
with the terms of and do all that is necessary to maintain in full force and
effect all authorisations, approvals, licences and consents and do all other
things required in or by the laws and regulations of its jurisdiction of
incorporation to enable it lawfully to enter into and perform its obligations
under this Agreement and the Transaction Documents to ensure the legality,
validity, enforceability or admissibility in evidence in its jurisdiction of
incorporation of this Agreement and the Transaction Documents.
15.2 INSURANCE The Guarantor shall procure that each member of the VNU Group
maintains insurances on and in relation to its business and assets with
reputable underwriters or insurance companies against such risks and to such
extent as is usual for companies carrying on a business such as that carried on
by such member of the VNU Group.
15.3 UNTRUE REPRESENTATIONS After the delivery of any Notice of Drawdown and
before the making of the Advance requested therein, the Guarantor shall notify
the Agent of the occurrence of any event which results in or may reasonably be
expected to result in any of the representations which are to be repeated
pursuant to Clause 12.2 (REPETITION) being untrue at or before the time of the
making of such Advance.
15.4 NOTIFICATION OF EVENTS OF DEFAULT The Guarantor shall promptly inform the
Agent of the occurrence of any Event of Default of which any Obligor is aware
and which is continuing or Potential Event of Default of which any Obligor is
aware and which is continuing and, upon receipt of a written request to that
effect from the Agent, confirm to the Agent that, save as previously notified to
the Agent or as notified in such confirmation, no Event of Default or Potential
Event of Default has to the best of the knowledge and belief of any Obligor
occurred.
15.5 CLAIMS PARI PASSU Each of the Obligors shall ensure that at all times the
claims of the Agent, the Arranger and the Banks under this Agreement rank PARI
PASSU with the monetary claims of all its other unsecured and unsubordinated
creditors save those whose claims are preferred solely by any bankruptcy,
insolvency, liquidation or other similar laws of general application or other
mandatory law applicable to enforcement of creditors' rights.
15.6 NEGATIVE PLEDGE Each Obligor shall ensure that it will not, and the
Guarantor will procure that no member or members of the VNU Group will, create,
assume or permit to subsist any encumbrance on all or any part of its respective
present or future assets or revenues to secure any Specified Indebtedness
without at the same time or prior thereto securing all amounts which are then
due under this Agreement equally and rateably therewith unless such encumbrance
is either:
(a) a Permitted Encumbrance; or
(b) created by any member of the VNU Group the aggregate net revenues of
which, consolidated if applicable, when aggregated with the net
revenues, consolidated if applicable, of each other member of the VNU
Group which has created any encumbrance on all or any part of its
respective present or future assets or revenues to secure any Specified
Indebtedness which is not otherwise permitted under this Clause 15.6
(NEGATIVE PLEDGE), represent not more than 10% of the consolidated net
revenues of the VNU Group,
PROVIDED THAT the foregoing shall not prohibit any encumbrances upon any
Margin Stock.
15.7 DISPOSALS Each Obligor shall ensure that it will not, and the Guarantor
will procure that no other member or members of the VNU Group will, dispose of,
by one or more transactions or series of transactions (whether related or not),
the whole or any part of its respective consolidated undertaking or consolidated
assets Provided that this Clause 15.7 (DISPOSALS) shall not apply to:
(a) any disposal made with the prior written consent of an Instructing
Group; and/or
(b) any disposal by a member of the VNU Group in the ordinary course of its
day to day trading and any disposal of Margin Stock; and/or
(c) the payment of lawful dividends; and/or
(d) any transfer or merger contemplated by Clause 16.11 which is permitted
by Clause 16.11; and/or
(e) any transfer or disposal by one member of the VNU Group to the
Guarantor or to another member of the VNU Group in which the Guarantor
has, directly or indirectly, an equity share at least equal to the
equity share which it holds, directly or indirectly, in such
first-mentioned member of the VNU Group; and/or
(f) any disposal of an undertaking or asset not otherwise permitted under
paragraphs (a) - (e) above if such disposal is made on arm's length
terms and for fair market value provided that any Disposal Proceeds
Excess relating thereto is applied in accordance with and to the extent
required by Clause 8.5 (MANDATORY PREPAYMENT FROM DISPOSALS).
15.8 NOTIFICATION OF DISPOSALS The Guarantor shall:
(a) at the same time as it delivers to the Agent its audited annual
financial statements pursuant to Clause 13.1 (FINANCIAL INFORMATION),
deliver to the Agent a certificate (in substantially the form of the
Tenth Schedule (FORM OF DISPOSALS CERTIFICATE)) providing a
specification of any undertaking or asset disposed of by any member of
the VNU Group during the financial year to which those financial
statements relate (otherwise than by way of a disposal permitted under
paragraphs (a) to (e) of Clause 15.7 (DISPOSALS)), the net revenues
derived therefrom, if any, and the Net Disposal Proceeds received for
such disposal; and
(b) at any time when an undertaking or asset is disposed of by any member
of the VNU Group (otherwise than by way of a disposal permitted under
paragraphs (a) to (e) of Clause 15.7 (DISPOSALS) deliver to the Agent a
certificate (in substantially the form of the Tenth Schedule (FORM OF
DISPOSALS CERTIFICATE)) providing a specification of such undertaking
or asset, the net revenues derived therefrom, if any, and the Net
Disposal Proceeds received for such disposal.
15.9 ENVIRONMENTAL COMPLIANCE The Guarantor shall ensure that each member of the
VNU Group shall comply in all material respects with all Environmental Laws and
obtain and maintain any Environmental Permits and take all reasonable steps in
anticipation of known or expected future changes to or obligations under the
same, breach of which (or failure to obtain, maintain or take which) could be
reasonably likely to have a material adverse effect on the financial condition
of the VNU Group taken as a whole and the ability of VNU N.V. (as Borrower
and/or Guarantor, as appropriate) to perform its payment obligations under this
Agreement.
15.10 ENVIRONMENTAL CLAIMS The Guarantor shall inform the Agent in writing as
soon as reasonably practicable upon becoming aware of the same if any
Environmental Claim has been commenced or (to the best of the Guarantor's
knowledge and belief) is threatened against any member of the VNU Group in any
case where such claim could be reasonably likely to have a material adverse
effect on the financial condition of the VNU Group taken as a whole and the
ability of VNU N.V. (as Borrower and/or Guarantor, as appropriate) to perform
its payment obligations under this Agreement.
15.11 MAINTAINING APPROVAL Without prejudice to Clause 15.1 (MAINTENANCE OF
LEGAL VALIDITY), the Guarantor will use its reasonable endeavours to obtain and
maintain and cause Parent and Purchaser
to obtain and maintain all material authorisations, approvals, consents,
licenses and exemptions and it will make all necessary filings and registrations
as may be required under any applicable law or regulation (which expression
shall include, without limitation, the Regulations and applicable federal and
state securities laws) to enable it to perform its obligations under this
Agreement and to enable it, Parent and Purchaser to perform their respective
obligations under each of the Transaction Documents, or required for the
validity or enforceability of this Agreement or any of the Transaction Documents
and will comply with the terms of the same.
15.12 TENDER OFFER RESTRICTIONS The Guarantor shall ensure that, and shall
procure that the Parent and the Purchaser shall ensure that:
(a) none of the conditions to the Tender Offer as set out in
Section 8.1 (a) or (b) of the Merger Document (in its executed
form dated 15 August, 1999) which allows the Parent or the
Purchaser to terminate the Merger Document shall be amended or
waived; and
(b) none of the Conditions to the Offer set out in the following
paragraphs of Exhibit A of the Merger Document (in its
executed form dated 15 August, 1999) ("EXHIBIT A") shall be
amended or waived:
(i) (i), (ii), (iii) (subject to the proviso below), (v)
and (vi)(b) (to the extent, in the case of (vi)(b),
that it relates to any of the representations set out
in Section 4.1(d), (s) or (t) of the Merger Document
PROVIDED THAT for this purpose the figure of
"150,000" in Section 4.1(d) shall be demed to be
"1,000,000");
(ii) (subject to paragraph (2) below): (vi)(a)(ii);
(iii) (subject to paragraphs (1) and (2) below):
(vi)(a)(i), (vi)(a)(iii), (vi)(a)(iv) or (vi)(e)
(including, for the avoidance of doubt but without
limitation, any waiver or amendment of the Condition
to the Offer set out in paragraph (vi)(e) to the
extent that it relates to the occurrence of any
event, change, occurrence or development of a state
of circumstances or facts relating to the IRI Action
but subject, in the case of the IRI Action and any
other matter or circumstance covered by condition
(vi)(e), to paragraphs (1) and (2) below)
unless, in relation to any provision of:
(1) the Conditions to the Offer set out in
paragraphs (vi)(a)(i), (vi)(a)(iii),
(vi)(a)(iv) or (vi)(e) of Exhibit A, the
Guarantor shall, prior to such amendment or
waiver, have complied with its obligations
under Clause 15.13(d) and such amendment or
waiver could not reasonably be expected to
have or lead to a material adverse effect on
the business or financial condition of the
VNU Group taken as a whole or on the ability
of VNU N.V. to perform its payment
obligations hereunder (either as Borrower or
as Guarantor) in a timely manner; and
(2) the Conditions to the Offer set out in
paragraphs (vi)(a)(i), (vi)(a)(ii),
(vi)(a)(iii), (vi)(a)(iv), or (vi)(e) of
Exhibit A, such amendment or waiver could
not reasonably be expected to lead to a
misrepresentation under Clause 12.1 (v)
PROVIDED THAT if (in the case of the Condition to the Offer
set out in paragraph (iii) of Exhibit A) there shall have been
delivered to the Target and IMS Health Incorporated an opinion
to the effect that the transactions contemplated by the Merger
Document (in such form) will not have the results set out in
sub-paragraph (A) or (B) of such paragraph (iii) and such
opinion is subject to any assumptions, reservations or
qualifications then the Purchaser shall not, if it accepts for
payment or pays for any Tendered Shares, be treated for the
purposes of this Clause 15.12 as having waived or amended the
Condition to the Offer set out in paragraph (iii) of Exhibit A
and shall not be prevented from accepting for payment or
paying for any Tendered Share by reason only of the fact that
such opinion contains any such qualification, reservation or
assumption PROVIDED THAT the Guarantor shall have complied
with its obligations in relation to such opinion set out in
paragraph (h) of Clause 15.13 (TENDER OFFER REQUIREMENTS);
(c) there shall be no amendment, variation or revision of the
terms of the Tender Offer as set out in the Transaction
Documents (i) relating to the price offered per Share to a
level above that which may from time to time be agreed with
the Arrangers, (ii) which would alter the terms of the Tender
Offer such that it would apply to shares or securities other
than the Shares (as defined in the Merger Document in its
executed form dated 15 August, 1999) or would not be a cash
offer for all such Shares or (iii) which requires the Target
to cancel, terminate or delete any stock options or stock
option plans or other plans providing for the issuance,
transfer or grant of any capital stock of the Target or which
requires the Target to ensure that any holder of a stock
option or a participant in a Stock Option Plan shall have no
right to acquire any capital stock of the Target, the Parent
or the surviving corporation following the Merger (all as
contemplated in Section 3.2 of the Merger Document in its
executed form dated 15 August, 1999); and
(d) neither the Purchaser nor the Parent shall breach any of their
obligations under the Merger Document if to do so would have
the result that any of the circumstances referred to in the
Conditions to the Offer set out in paragraph (vi)(a) of
Exhibit A would occur.
15.13 TENDER OFFER REQUIREMENTS The Guarantor shall and it shall procure that
the Parent and the Purchaser shall:
(a) (without prejudice to Clause 15.1 (MAINTENANCE OF LEGAL VALIDITY) and
Clause 15.11 (MAINTAINING APPROVAL)) in relation to the Tender Offer,
comply in all material respects with the Regulations and applicable US
federal and state securities laws and all other material laws and
regulations except where failure to do so could not reasonably be
expected to have a material adverse effect on the financial condition
of the VNU Group taken as a whole and the ability of VNU N.V. (as
Borrower and/or Guarantor, as appropriate) to perform its payment
obligations under this Agreement in a timely manner;
(b) make available to the Agent as soon as practicable all of the Tender
Offer Documents and all publicity material, press releases and other
documents submitted or filed with the SEC by or on behalf of Purchaser
and, at the request of the Agent, provide the Agent with any material
information in the possession of Purchaser relating to the Tender Offer
as the Agent may reasonably request;
(c) use reasonable endeavours to ensure that no publicity material, press
releases or other documents in relation to the Tender Offer are
published or released by it or on behalf of Purchaser or its or their
advisers which refer to any of the Agent, the Arrangers or the Banks,
this Agreement or the Facility unless such reference and the context in
which it appears have
previously been approved by the Agent and the Banks (such approval not
to be unreasonably withheld or delayed) and the Agent and the Banks
shall not withhold such approval if such publication or release is
required by law;
(d) promptly consult with the Agent before taking any action to waive or
amend any provision of the Tender Offer Documents referred to in Clause
15.12 (TENDER OFFER RESTRICTIONS), discuss with the Agent, and provide
reasonable information supporting, the Guarantor's reasons for wishing
to give or make the relevant waiver or amendment (which information
shall include reasonable evidence that the relevant amendment or waiver
could not reasonably be expected to lead to a breach of Clause 12.1 (v)
or a material adverse effect as referred to in Clause 15.12 (1)), allow
the Agent a reasonable period of time in the relevant circumstances to
discuss such information with, and make representations in relation
thereto to, the Guarantor and as far as possible, promptly consult with
the Agent before taking any action to waive or amend any other material
provision in any of the Tender Offer Documents;
(e) after the Tender Offer is consummated, use all reasonable endeavours to
acquire all of the Shares as soon as reasonably practicable in
accordance with the terms of the Tender Offer, and applicable laws and
regulations (including, without limitation, the Regulations and
applicable federal and state securities laws);
(f) as soon as reasonably practicable after purchase by the Purchaser of
Tendered Shares satisfying the Minimum Condition, consummate the Merger
and file the certificate of merger (as contemplated in the Merger
Document) upon such consummation;
(g) notify the Agent of the number of shares tendered in connection with
the Tender Offer and notify the Agent (if requested by the Agent) of
the status of any application to the Antitrust Division of the
Department of Justice of the United States of America (the "ANTITRUST
DIVISION") and/or the Federal Trade Commission and/or the applicable
State Attorneys General in connection with the Transaction until such
time as the Tender Offer either is withdrawn, lapses or is consummated;
and
(h) in relation to any opinion delivered for the purposes of any Condition
to the Offer set out in paragraph (iv) or (v) of Exhibit A of the
Merger Document (in its executed form dated 15 August, 1999), promptly
deliver a copy of such opinion to the Agent and, if any such opinion
contains any assumptions, reservations or qualifications, the Guarantor
shall, before the Purchaser accepts for payment or pays for any
Tendered Share and if requested by the Agent, promptly consult with the
Agent in relation to such opinion, discuss such opinion with the Agent,
provide reasonable information supporting the Guarantor's view that
such opinion satisfies the relevant Condition to the Offer set out in
such paragraph (iv) or (v) of such Exhibit A (but only to the extent
that any such information is available to the Guarantor) and allow the
Agent a reasonable period of time in the relevant circumstances to
discuss such opinion with, and make representations in relation to such
opinion to, the Guarantor.
15.14 YEAR 2000 COMPLIANCE The Guarantor shall endeavour in accordance with
prudent industry practice to procure that all Computer Systems material to the
operations of the VNU Group and which are used by any member of the VNU Group
are at all relevant times Year 2000 Compliant.
15.15 NO BREACH OF MARGIN REGULATIONS Nothing contained in this Agreement shall
restrict the ability of the Guarantor or any of its subsidiaries from selling,
pledging or otherwise disposing of any assets which, at the time in question,
constitute Margin Stock, or cause or enable any one or more Banks to cause any
or all of the Advances or other payment obligations owed by the Guarantor
hereunder to become due and payable or enable any one or more of the Banks to
take any of the actions specified in Clause 16.20 (ACCELERATION AND
CANCELLATION) solely as a result of any such sale, pledge or disposition or
otherwise impose restrictions which violate Regulations T, U or X of the
Board of Governors of the Federal Reserve System as in effect from time to time.
15.16 MERGERS AND ACQUISITIONS The Guarantor shall ensure that no member of the
VNU Group shall after the date of this Agreement merge or consolidate with any
other person or acquire any business or undertaking or part of a business or
undertaking (which in the case of a part of a business or undertaking shall mean
a part of a business which in itself constitutes a separate business or
undertaking) from, or any shares or other equity interest in, any other person
(a "RESTRICTED TRANSACTION") except for:
(a) the Acquisition; and
(b) and any other restricted transaction if the value of the aggregate
consideration payable or transferable to any person (other than another
member of the VNU Group) in respect of such restricted transaction,
when aggregated with the value of the aggregate consideration payable
or transferable by any member of the VNU Group to any person (other
than another member of the VNU Group) in respect of each other
restricted transaction entered into by any member of the VNU Group
after the date hereof, does not exceed:
(i) at any time prior to the expiry of the Initial Period, NLG
500,000,000 (or its equivalent in other currencies); or
(ii) at any time thereafter, NLG 1,000,000,000 (or its equivalent
in other currencies)
(any such restricted transaction referred to in and permitted by this
paragraph (b) being referred to herein as a "PERMITTED ACQUISITION").
15.17 RESTRICTED INDEBTEDNESS Save as contemplated pursuant to the terms of this
Agreement, the Guarantor shall not, and shall procure that no member of the VNU
Group shall, without the prior written consent of an Instructing Group, incur or
permit to subsist any Restricted Indebtedness under any agreement or arrangement
entered into by such member of the VNU Group after the date hereof (and, for the
avoidance of doubt, the utilisation of any facility existing at the date hereof
shall not be construed as entering into another agreement or arrangement after
the date hereof) unless:
(a) such Restricted Indebtedness is applied in the payment or refinancing
of the consideration payable or transferable by any member of the VNU
Group to any person (other than another member of the VNU Group) in
respect of any Permitted Acquisition and the principal amount thereof,
when aggregated with:
(i) the principal amount of any other Restricted Indebtedness
incurred by any member of the VNU Group (whether under any
agreement or arrangement entered into by any member of the VNU
Group either before or after the date hereof) which is applied
in payment or refinancing of the consideration payable or
transferable by any member of the VNU Group to any person
(other than another member of the VNU Group) in respect of a
Permitted Acquisition; and
(ii) the Net Disposal Proceeds of any disposal made after the date
hereof (other than any disposal permitted by paragraphs (a) -
(e) of Clause 15.7 and any disposal, if any, of the Newspaper
Group or any assets or revenues of the Newspaper Group) which
are not required to be paid into the Escrow Account or in
prepayment of Advances in accordance with Clause 8.5
(MANDATORY PREPAYMENT FROM DISPOSALS)
does not exceed:
(1) at any time prior to the expiry of the Initial
Period, NLG 500,000,000 (or its
equivalent in other currencies); or
(2) at any time thereafter, NLG 1,000,000,000 (or its
equivalent in other currencies); or
(b) such Restricted Indebtedness is not applied in accordance with
paragraph (a) above but is applied in accordance with Clause 8.7
(MANDATORY PREPAYMENT FROM ISSUE OF DEBT).
15.18 PREPAYMENT OF TARGET DEBT The Guarantor will ensure that if after the
Acquisition Date and before the end of the Clean-up Period any Specified
Indebtedness of any member of the Target Group exceeding, when aggregated with
all other Specified Indebtedness to which Clause 16.5 would (but for the
thresholds therein) apply, the relevant thresholds in Clause 16.5, becomes due
and payable prior to its specified maturity it shall as soon as practicable
either draw on existing facilities or enter into other arrangements and draw
thereon in order to refinance such Specified Indebtedness.
15.19 COMPLIANCE WITH WORKS' COUNCIL CONDITIONS The Guarantor shall ensure that
each member of the Group shall use its best efforts to comply with the terms of
any conditions attached to any positive advice referred to in the Conditions to
the Offer set out in paragraph (iv)(B) of Exhibit A which in its opinion would
not result in any material detriment or restriction referred to in such
paragraph.
16. EVENTS OF DEFAULT
Each of Clause 16.1 to Clause 16.16 describes circumstances which constitute an
Event of Default for the purposes of this Agreement. Clause 16.18 and Clause
16.19 deal with the rights of the Agent and the Banks after the occurrence of an
Event of Default.
16.1 FAILURE TO PAY PRINCIPAL Any of the Obligors fails to pay the principal
amount of any Advance due from it hereunder in the currency and in the manner
specified herein on its due date or, if such failure to pay is caused solely as
a result of administrative or technical reasons, within three business days of
such due date.
16.2 FAILURE TO PAY INTEREST AND OTHER AMOUNTS Any of the Obligors fails to pay
interest on any Advance or any other sum due from it hereunder in the currency
and in the manner specified herein within five business days of the due date
therefor.
16.3 MISREPRESENTATION Any representation or warranty made pursuant to Clause 12
(REPRESENTATIONS) is or proves to have been untrue or misleading in any material
respect when made or deemed to be repeated or any other statement made by any of
the Obligors in this Agreement or in any written notice or other document,
certificate or statement delivered by it pursuant hereto or in connection
herewith is or proves to have been untrue or misleading in any material respect
when made or deemed to be repeated.
16.4 OTHER OBLIGATIONS Any of the Obligors fails duly to perform or comply with
any obligation expressed to be assumed by it in this Agreement (other than a
payment obligation referred to in Clause 16.1 (FAILURE TO PAY PRINCIPAL) or
Clause 16.2 (FAILURE TO PAY INTEREST AND OTHER AMOUNTS)) and such failure, if
capable of remedy, is not remedied within thirty days of receipt by the
Guarantor of notice from the Agent of such failure.
16.5 CROSS DEFAULT AND RESCHEDULING Save as disclosed in the Disclosure Letter
and excluding any Specified Indebtedness of the Target Group during the Clean-up
Period which any member of the VNU Group is able to refinance by making use of
the Facility or any other facility for the provision of Specified Indebtedness
in existence as at the date hereof (whether or not such member of the VNU
Group does actually apply such Specified Indebtedness for the purpose of such
refinancing), if:
(a) any Obligor or any member or members of the VNU Group the aggregate net
revenues of which, consolidated if applicable, represent 10% or more of
the consolidated net revenues of the VNU Group fails or fail to pay at
the due time (subject to any originally applicable contractual grace
period or, where there is no such grace period and if no legal or
formal action is being taken by the relevant creditor or creditors in
relation to such Specified Indebtedness as a result of such failure,
within three business days of such due time) an amount relating to any
Specified Indebtedness having a principal (or notional principal)
amount in excess of NLG 25,000,000 (or its equivalent in other
currencies) or, when aggregated with the principal (or notional
principal) amount of any other Specified Indebtedness to which this
Clause 16.5 applies, NLG 50,000,000 (or its equivalent in other
currencies); or
(b) any Specified Indebtedness of any Obligor or any member or members of
the VNU Group the aggregate net revenues of which, consolidated if
applicable, represent 10% or more of the consolidated net revenues of
the VNU Group having a principal (or notional principal) amount in
excess of NLG 25,000,000 (or its equivalent in other currencies) or,
when aggregated with the principal (or notional principal) amount of
any other Specified Indebtedness to which this Clause 16.5 applies, NLG
50,000,000 (or its equivalent in other currencies) is declared to be or
otherwise becomes due and payable prior to its specified maturity with
the exception of any such declaration which is being diligently
contested in good faith by such Obligor or such member or members of
the VNU Group on the basis of independent legal advice and in respect
of which the relevant creditor (or creditors) have not obtained a
judgement in respect of such declaration which has not been stayed and
which is enforceable notwithstanding any further appeal; or
(c) any Obligor or any member or members of the VNU Group the aggregate net
revenues of which, consolidated if applicable, represent 10% or more of
the consolidated net revenues of the VNU Group commences or commence
negotiations with any creditor or creditors (with the exception of any
negotiations commenced in the absence of default or potential default)
in relation to any Specified Indebtedness having a principal (or
notional principal) amount in excess of NLG 25,000,000 (or its
equivalent in other currencies) or, when aggregated with the principal
(or notional principal) amount of any other Specified Indebtedness to
which this Clause 16.5 applies, NLG 50,000,000 (or its equivalent in
other currencies).
16.6 BANKRUPTCY AND INSOLVENCY Any of the Obligors and/or any member or members
of the VNU Group the aggregate net revenues of which, consolidated if
applicable, represent 10% or more of the consolidated net revenues of the VNU
Group (a) becomes or become bankrupt or insolvent, submits or submit a request
to declare itself or themselves bankrupt or insolvent or to enter into a
voluntary arrangement with its or their creditors or to suspend its or their
payments or applies or apply for a moratorium of payment (other than for the
purposes of a solvent reorganisation on terms approved by an Instructing Group,
such consent not to be unreasonably withheld) or (b) enters or enter into a
composition, scheme of arrangement, compromise or other similar arrangement with
its or their creditors, files or file a petition for a suspension of payments,
admits or admit in writing that it or they cannot pay its or their debts
generally as they become due or initiates or initiate a procedure to become, or
becomes or become, subject to liquidation or administration under any
legislation which may from time to time be applicable to it or them without the
prior written approval of an Instructing Group except there shall be no Event of
Default:
(a) where the Guarantor and/or such member or members of the VNU
Group has become subject to liquidation or administration
proceedings which are frivolous or vexatious provided such
proceedings are struck out within 30 days of their
commencement; or
(b) as a result of the consummation of the Merger in accordance
with the Merger Document.
16.7 ATTACHMENTS 5% of the consolidated Total assets of the VNU Group
(determined by reference to accounting standards applied in the Original
Financial Statements or (after publication of the Guarantor's annual audited
consolidated financial statements for its financial year ended 31 December 1998
or any of its subsequent financial years, the Guarantor's annual audited
consolidated financial statements for its financial year ended 31 December, 1998
or such subsequent year respectively) becomes attached by way of executory
attachment (so called "EXECUTORIAAL BESLAG") or an interlocutory attachment (so
called "CONSERVATOIR BESLAG") or becomes subject to any similar proceeding in
any other jurisdiction and in the case of an interlocutory attachment, such
attachment is not released within 30 business days from the date of the court
ordering such attachment pending resolution of the relevant dispute.
16.8 GOVERNMENTAL INTERVENTION By or under the authority of any government, (a)
the management of any Obligor or any member or members of the VNU Group the
aggregate net revenues of which, consolidated if applicable, represent 10% or
more of the consolidated net revenues of the VNU Group is wholly or partially
displaced or the authority of any Obligor or such member or members of the VNU
Group in the conduct of its or their business is wholly or partially curtailed
or (b) all or majority of the issued share capital of any Obligor or any member
or members of the VNU Group the aggregate net revenues of which, consolidated if
applicable, represent 10% or more of the consolidated net revenues of the VNU
Group, or any assets of the VNU Group the aggregate net revenues, consolidated
if applicable, derived from which represent 10% or more of the consolidated net
revenues of the VNU Group, are seized, nationalised, expropriated or
compulsorily acquired.
16.9 MATERIAL ADVERSE CHANGE There has, in the reasonable opinion of an
Instructing Group, been a material adverse change (other than any such change
disclosed in the Disclosure Letter), in the financial condition of the VNU Group
(taken as a whole) since the date hereof which affects the Guarantor's ability
to perform its payment obligations under this Agreement.
16.10 LOSS OF LEGAL STATUS Any Obligor ceases to be a corporation duly organised
under the laws of its jurisdiction of incorporation Provided that this shall not
be an Event of Default if, within 60 days of any Borrower ceasing to be such a
duly organised corporation, the Advance or Advances owed by such Borrower are
repaid or refinanced by another Borrower in accordance with Clause 8.8 (TRANSFER
OF ADVANCES).
16.11 TRANSFERS AND MERGERS The Guarantor, without prior written approval of the
Banks, transfers all or a substantial part of its business into another business
or merges with another business or transfers all or a substantial part of its
business in any other way, unless the new surviving entity as a result of such
transfer or merger explicitly and unconditionally assumes all obligations of the
Guarantor under the Facility and will be of the same creditworthiness as the
Guarantor Provided that any such transfer or merger which is permitted pursuant
to this Clause 16.11 (TRANSFERS AND MERGERS) shall not constitute a breach of
Clause 15.7 (DISPOSALS).
16.12 CHANGE OF BUSINESS The Guarantor ceases, or announces publicly its
decision to cease, to carry on all of the business it carries on at the date
hereof or enters into any new or unrelated business which is substantial in the
context of the VNU Group and which does not relate to the media, communication
or information industry. For the purposes of this Clause 16.12 a new or
unrelated business shall be deemed to be "substantial" if the assets or revenues
of such business at the time such business is entered into, when aggregated with
the assets or revenues of each other business of the VNU Group or any part
thereof at such time which does not relate to the media, communication or
information industry, constitute at least 10% of the assets or revenues of the
VNU Group at such time.
16.13 CHANGE OF CONTROL The Guarantor becomes aware that control of the
Guarantor has changed
such that the Guarantor has become controlled by a person (other than "Stichting
VNU") not controlling it at the date hereof and after a period of 2 months is
still controlled by that person. For the purpose of this clause "control" means
(whether directly or indirectly), the ownership of more than 50% of share
capital having voting rights.
16.14 REPUDIATION Any of the Obligors repudiates this Agreement or does or
causes to be done any act or thing evidencing an intention to repudiate this
Agreement.
16.15 ILLEGALITY At any time it is or becomes (and does not cease within thirty
days to be) unlawful for any of the Obligors to perform or comply with any or
all of its obligations hereunder or any of the obligations of any of the
Obligors hereunder are not or cease to be legal, valid and binding save as the
same may be affected by any bankruptcy, insolvency, liquidation or other similar
laws of general application or laws relating to the protection of creditors'
rights Provided that, for the avoidance of doubt, it shall not be an Event of
Default under this Clause 16.15 if the relevant Obligor is a Borrower (other
than the Guarantor) and, within thirty days of the obligations of such Borrower
becoming unlawful or ceasing to be legal, valid and binding, the Advances made
to such Borrower have been repaid or transferred to another Borrower in
accordance with Clause 8.8 (TRANSFER OF ADVANCES).
16.16 VALIDITY AND ENFORCEABILITY Any act, condition or thing required to be
done, fulfilled or performed in order:
(a) to ensure that the obligations expressed to be assumed by each
of the Obligors in this Agreement are legal, valid and binding
with respect to the respective Obligors; or
(b) to make this Agreement admissible in evidence in England and
Wales and the Netherlands
is not done, fulfilled or performed and such failure is not remedied within 30
days of the date on which any of the Obligors becomes (or ought reasonably to
become) aware of the same.
16.17 ERISA EVENT With respect to any US Subsidiary or any ERISA Affiliate
thereof, an ERISA Event shall occur with respect to an Employee Plan and there
shall result from such ERISA Event a liability which could reasonably be
expected to have a material adverse effect on the financial condition of the VNU
Group taken as a whole and the ability of VNU (as Borrower and/or Guarantor, as
appropriate) to perform its payment obligations under this Agreement.
16.18 ACCELERATION AND CANCELLATION If an Event of Default occurs and is
continuing then, at any time thereafter, the Agent may (and, if so instructed by
an Instructing Group, shall) by written notice to each of the Obligors:
(a) declare the Advances to be immediately due and payable (whereupon the
same shall become so payable together with accrued interest thereon and
any other sums then owed by the Borrowers hereunder) or declare the
Advances to be due and payable on demand of the Agent; and/or
(b) declare that the Facility shall be cancelled, whereupon the same shall
be cancelled and the Commitment of each Bank shall be reduced to zero.
16.19 ADVANCES DUE ON DEMAND If, pursuant and subject to Clause 16.18
(ACCELERATION AND CANCELLATION), the Agent declares the Advances to be due and
payable on demand of the Agent, then, and at any time thereafter, the Agent may
(and, if so instructed by an Instructing Group, shall) by written notice to the
Borrowers require repayment of the Advances on such date as it may specify in
such notice (whereupon the same shall become due and payable on such date
together with accrued interest thereon and any other sums then owed by each of
the Borrowers hereunder) or withdraw its
declaration with effect from such date as it may specify in such notice.
PART 7
GUARANTEE
17. GUARANTEE AND INDEMNITY
17.1 GUARANTEE The Guarantor irrevocably and unconditionally guarantees to the
Agent, the Arrangers and the Banks the due and punctual payment of all sums from
time to time payable by each of the Borrowers contained in this Agreement and
agrees to pay to the Agent from time to time on demand any and every sum or sums
of money which any of the Borrowers is at any time liable to pay to the Agent,
the Arrangers and the Banks or any of them under or pursuant to this Agreement
and which has become due and payable but has not been paid at the time such
demand is made.
17.2 INDEMNITY The Guarantor irrevocably and unconditionally agrees as a primary
obligation to indemnify the Agent, the Arrangers and the Banks from time to time
on demand by the relevant Agent from and against any cost, claim, loss, expense
(including reasonable legal fees) or liability together with any VAT thereon
sustained or incurred by the Agent, the Arrangers and the Banks or any of them
as a result of any of the obligations of any of the Borrowers under or pursuant
to this Agreement being or becoming void, voidable, unenforceable or ineffective
as against such Borrower for any reason whatsoever, whether or not known to the
Agent, the Arrangers and the Banks or any of them or any other person, the
amount of such loss being the amount which the person or persons suffering it
would otherwise have been entitled to recover from such Borrower.
17.3 ADDITIONAL SECURITY The obligations of the Guarantor herein contained shall
be in addition to and independent of every other security which the Agent, the
Arrangers and the Banks or any of them may at any time hold in respect of any of
the Borrowers' obligations hereunder.
17.4 CONTINUING OBLIGATIONS Subject to Clause 17.10 (RELEASE), the obligations
of the Guarantor herein contained shall constitute and be continuing obligations
notwithstanding any settlement of account or other matter or thing whatsoever
and shall not be considered satisfied by any intermediate payment or
satisfaction of all or any of the obligations of any of the Borrowers under this
Agreement and shall continue in full force and effect until final payment in
full of all amounts owing by each of the Borrowers hereunder and total
satisfaction of each of the Borrowers' actual and contingent payment obligations
hereunder.
17.5 OBLIGATIONS NOT DISCHARGED Neither the obligations of the Guarantor herein
contained nor the rights, powers and remedies conferred in respect of the
Guarantor upon the Agent, the Arrangers and the Banks or any of them by this
Agreement or by law shall be discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation
of any of the Borrowers (other than the Guarantor) or any
other person providing any security or guarantee in connection
with any obligations assumed hereunder or any change in its
status, function, control or ownership;
(b) any of the obligations of any of the Borrowers (other than the
Guarantor) or any other person providing any security or
guarantee in connection with any obligations assumed hereunder
or under any other security taken in respect of any of the
Borrowers' obligations hereunder being or becoming illegal,
invalid, unenforceable or ineffective in any respect;
(c) time or other indulgence being granted or agreed to be granted
to any of the Borrowers in respect of its obligations
hereunder or under any such other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of any of the
Borrowers hereunder or under any such other security;
(e) any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken in respect
of any of the Borrowers' obligations hereunder;
(f) any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
security taken in respect of any of the Borrowers' obligations
hereunder; or
(g) any other act, event or omission which, but for this Clause
17.5, might operate to discharge, impair or otherwise affect
any of the obligations of the Guarantor herein contained or
any of the rights, powers or remedies conferred upon the
Agent, the Arrangers and the Banks or any of them by this
Agreement or by law.
17.6 SETTLEMENT CONDITIONAL Any settlement or discharge between the Guarantor
and the Agent, the Arrangers and the Banks or any of them shall be conditional
upon no security or payment to the Agent, the Arrangers and the Banks or any of
them by any of the Borrowers or the Guarantor or any other person on behalf of
any of the Borrowers or, as the case may be, the Guarantor being avoided or
reduced by virtue of any provisions or enactments relating to bankruptcy,
insolvency, liquidation or similar laws of general application for the time
being in force and, if any such security or payment is so avoided or reduced,
the Agent, the Arrangers and the Banks shall each be entitled to recover the
value or amount of such security or payment from the Guarantor subsequently as
if such settlement or discharge had not occurred.
17.7 EXERCISE OF RIGHTS Neither the Agent, the Arrangers and the Banks nor any
of them shall be obliged before exercising any of the rights, powers or remedies
conferred upon them in respect of the Guarantor by this Agreement or by law:
(a) to make any demand of any of the Borrowers;
(b) to take any action or obtain judgment in any court against any
of the Borrowers;
(c) to make or file any claim or proof in a winding-up or
dissolution of any of the Borrowers; or
(d) to enforce or seek to enforce any other security taken in
respect of any of the obligations of any of the Borrowers
hereunder.
17.8 DEFERRAL OF GUARANTOR'S RIGHTS The Guarantor agrees that, so long as any
amounts are or may be owed by any of the Borrowers hereunder or any of the
Borrowers is under any actual or contingent obligations hereunder, the Guarantor
shall not exercise any rights which the Guarantor may at any time have by reason
of performance by it of its obligations hereunder:
(a) to be indemnified by any of the Borrowers; and/or
(b) to claim any contribution from any other guarantor of any of
the Borrowers' obligations hereunder; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Agent, the
Arrangers and the Banks hereunder or of any other security
taken pursuant to, or in connection with, this Agreement by
all or any of the Agent, the Arrangers and the Banks.
17.9 SUSPENSE ACCOUNTS All moneys received, recovered or realised by a Bank by
virtue of
Clause 17.1 (GUARANTEE) or Clause 17.2 (INDEMNITY) may, in that Bank's
discretion, be credited to a suspense or impersonal account (bearing interest at
a competitive commercial rate) and may be held in such account for so long as
such Bank thinks fit pending the application from time to time (as such Bank may
think fit) of such moneys in or towards the payment and discharge of any amounts
owing by any of the Obligors to such Bank hereunder, provided that such Bank
will apply such moneys in payment and discharge of amounts owing by the Obligors
to such Bank forthwith in the event that such moneys are of an amount equal to
or greater than all the amounts owing by the Obligors hereunder and upon full
and final payment of all amounts hereunder this Clause 17.9 shall have no
further effect.
17.10 RELEASE Not later than two years after all obligations of the Borrowers
and the Guarantor hereunder have been fully and finally satisfied the Guarantor
shall be released from its obligations under this Clause 17 unless the Agent or
any Bank has notified the Guarantor in writing prior to expiry of such two year
period that it is of the reasonable opinion that a claim may be required to be
made against the Guarantor hereunder following expiry of such two year period or
that the Agent or any Bank is aware of any matter or thing which might
reasonably give rise to such a claim.
PART 8
DEFAULT INTEREST AND INDEMNITY
18. DEFAULT INTEREST AND INDEMNITY
18.1 DEFAULT INTEREST PERIODS If any sum due and payable by any of the Obligors
hereunder is not paid on the due date therefor in accordance with the provisions
of Clause 20 (PAYMENTS) or if any such sum due and payable by any of the
Obligors under any judgment of any court in connection herewith is not paid on
the date of such judgment, the period beginning on such due date or, as the case
may be, the date of such judgment and ending on the date upon which the
obligation of such Obligor to pay such sum (the balance thereof for the time
being unpaid being herein referred to as an "UNPAID SUM") is discharged shall be
divided into successive periods, each of which (other than the first) shall
start on the last day of the preceding such period and the duration of each of
which shall (except as otherwise provided in this Clause 18) be selected by the
Agent (acting reasonably).
18.2 DEFAULT INTEREST During each such period relating thereto as is mentioned
in Clause 18.1 (DEFAULT INTEREST PERIODS) an unpaid sum shall bear interest at
the rate per annum which is the sum from time to time of one per cent., the
Applicable Margin and LIBOR (or, in the case of euros, EURIBOR) on the Quotation
Date therefor Provided that:
(a) if, for any such period, LIBOR (or, in the case of euros,
EURIBOR) cannot be determined, the rate of interest applicable
to such unpaid sum shall be the rate per annum which is the
sum of one per cent., the Applicable Margin and the rate per
annum determined by the Agent to be equal to the arithmetic
mean (rounded upwards, if not already such a multiple, to the
nearest whole multiple of one thousandth of one per cent.) of
the rates notified by each of the Banks to the Agent before
the last day of such period to be those which express as a
percentage rate per annum the cost to it of funding from
whatever sources it may select its portion of such unpaid sum
for such period during such period; and
(b) if such unpaid sum is all or part of a Advance which became
due and payable on a day other than the last day of its Term
relating thereto the first such period applicable thereto
shall be of a duration equal to the unexpired Term and the
rate of interest applicable thereto from time to time during
such period shall be that which exceeds by one per cent. the
rate which would have been applicable to it had it not so
fallen due.
18.3 PAYMENT OF DEFAULT INTEREST Any interest which shall have accrued under
Clause 18.2 (DEFAULT INTEREST) in respect of any sum shall be due and payable
and shall be paid by the Obligor owing such sum at the end of the period by
reference to which it is calculated or on such other dates thereafter as the
Agent may reasonably specify by written notice to such Obligor.
18.4 BROKEN PERIODS If any Bank or the Agent on its behalf receives or recovers
all or any part of such Bank's share of an Advance otherwise than on the last
day of the Term relating to that Advance, the relevant Borrower shall pay to the
Agent on demand for account of such Bank an amount equal to the amount (if any)
by which (a) the additional interest which would have been payable on the amount
so received or recovered had it been received or recovered on the last day of
the relevant Term exceeds (b) the amount of interest which in the opinion of the
Agent would have been payable to it on the last day of the relevant Term in
respect of a deposit in the currency of the amount so received or recovered
equal to the amount so received or recovered placed by it with a prime bank in
London for a period starting on the third business day following the date of
such receipt or recovery and ending on the last day of the relevant Term.
18.5 BORROWERS' INDEMNITY Each of the Borrowers respectively undertakes to
indemnify:
(a) the Agent, the Arrangers and the Banks against any cost,
claim, loss, expense (including legal fees) or liability
together with any VAT thereon, which any of them may sustain
or incur as a consequence of the occurrence of any Event of
Default or any default by it in the performance of any of the
obligations expressed to be assumed by it in this Agreement;
(b) the Agent against any cost or loss it may suffer or incur as a
result of (i) its entering into, or performing, any foreign
exchange contract for the purposes of Clause 20 (PAYMENTS);
(c) each Bank against any loss it may suffer or incur as a result
of its funding or making arrangements to fund its portion of
an Advance requested by a Borrower hereunder but not made by
reason of the operation of any one or more of the provisions
hereof; and
(d) each Bank which has notified the Agent in accordance with
Clause 6.2 (INABILITY TO FUND) that it is unable to fund an
Advance during the Term relating thereto in the currency in
which such Advance is denominated against any direct cost,
claim, loss, expense (including legal fees) or liability
together with any VAT thereon which such Bank incurs (having
regard, to the extent within the power of such Bank and so far
as it is reasonably able to do so, to minimising such cost,
claim, loss, expense or liability) as a result of such Bank
being unable to so fund its portion of such Advance.
18.6 UNPAID SUMS AS ADVANCES Any unpaid sum and any sum referred to in Clause
18.2 (DEFAULT INTEREST) shall (for the purposes of this Clause 18 and Clause
11.1 (INCREASED COSTS)) be treated as an advance and accordingly in this Clause
18 and Clause 11.1 (INCREASED COSTS) the term "Advance" includes any unpaid sum
and the term "INTEREST PERIOD" in relation to an unpaid sum or any such sum,
includes each such period relating thereto as is mentioned in Clause 18.1
(DEFAULT INTEREST PERIODS) or, as the case may be, each period by reference to
which interest is calculated under Clause 18.2 (DEFAULT INTEREST).
PART 9
PAYMENTS
19. CURRENCY OF ACCOUNT AND PAYMENT
19.1 CURRENCY OF ACCOUNT The dollar is the currency of account and payment for
each and every sum at any time due from any of the Obligors hereunder Provided
that:
(a) each repayment of an Advance or a part thereof shall be made
in the currency in which such Advance is denominated at the
time of that repayment;
(b) each payment of interest shall be made in the currency in
which the sum in respect of which such interest is payable is
denominated;
(c) each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred;
(d) each payment pursuant to Clause 9.2 (TAX INDEMNITY) or Clause
11.1 (INCREASED COSTS) shall be made in the currency in which
such cost is incurred as specified by the party claiming
thereunder; and
(e) any amount expressed to be payable in a currency other than
dollars shall be paid in that other currency.
19.2 CURRENCY INDEMNITY If any sum due from any of the Obligors under this
Agreement or any order or judgment given or made in relation hereto has to be
converted from the currency (the "FIRST CURRENCY") in which the same is payable
hereunder or under such order or judgment into another currency (the "SECOND
CURRENCY") for the purpose of (a) making or filing a claim or proof against such
Obligor, (b) obtaining an order or judgment in any court or other tribunal or
(c) enforcing any order or judgment given or made in relation hereto, such
Obligor shall indemnify and hold harmless each of the Banks and the Agent to
whom such sum is due from and against any loss suffered or incurred as a result
of any discrepancy between (i) the rate of exchange used for such purpose to
convert the sum in question from the first currency into the second currency and
(ii) the rate or rates of exchange at which such Bank or the Agent (as the case
may be) may in the ordinary course of business (and acting reasonably) purchase
the first currency with the second currency upon receipt of a sum paid to it in
satisfaction, in whole or in part, of any such order, judgment, claim or proof
Provided that, where any such discrepancy results in any of the Banks and the
Agent receiving an amount greater than the sum converted for the purposes
referred to in this Clause, the Banks and the Agent shall at the cost and
expense of the Guarantor pay an amount equal to such excess to the relevant
Obligor provided further that the amount to be paid by the relevant Bank or
Agent shall not exceed an amount which would leave such Bank or Agent in no
worse position than if such conversion had not been made.
20. PAYMENTS
20.1 PAYMENTS TO THE AGENT On each date on which this Agreement requires an
amount to be paid by any of the Obligors or any of the Banks hereunder, such
Obligor or, as the case may be, such Bank shall make the same available to the
Agent:
(a) where such amount is denominated in dollars by payment in
dollars and in same day funds (or in such other funds as may
for the time being be customary in New York for the settlement
in New York of international banking transactions in dollars)
to the Agent's account number 000-00000-0000 with ABN AMRO
Bank N.V., New York (or such other account or bank as the
Agent may have specified for this purpose); or
(b) where such amount is denominated in euros, by payment in euros
and in immediately available, freely transferable, cleared
funds to such account with such bank in such financial centre
as the Agent shall have specified for this purpose.
20.2 ALTERNATIVE PAYMENT ARRANGEMENTS If, at any time, it shall become
impracticable (by reason of any action of any governmental authority or any
change in law, exchange control regulations or any similar event) for any of the
Obligors to make any payments hereunder in the manner specified in Clause 20.1
(PAYMENTS TO THE AGENT), then such Obligor may use alternative arrangements for
the payment direct to such Bank of amounts due to such Bank hereunder, provided
that upon implementation of such alternative arrangements the relevant Bank
shall receive the relevant payment in freely transferable and convertible funds
and provided further that the relevant Obligor shall be liable for all costs,
losses, delays and expenses together with any VAT thereon resulting from using
such alternative arrangements and shall indemnify and hold harmless each of the
Banks against any costs or expenses incurred by the Banks as a result of using
such alternative arrangements. Each Bank making a claim against the Obligors
under this Clause 20.2 shall provide the Obligors, through the Agent, with a
reasonably detailed explanation as to any such cost or expense incurred by it
Provided that nothing contained in this Clause 20.2 shall require any Bank to
disclose any confidential information relating to the organisation of its
affairs. Any Obligor employing any alternative payment arrangements pursuant to
this Clause 20.2 shall immediately notify the Agent thereof and shall thereafter
promptly notify such Agent of all payments made direct to the relevant Bank.
20.3 PAYMENTS BY THE AGENT Save as otherwise provided herein, each payment
received by the Agent for the account of another person pursuant to Clause 20.1
(PAYMENTS TO THE AGENT) shall:
(a) in the case of a payment received for the account of a
Borrower, be made available by the Agent to such Borrower by
application:
(i) first, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then
due from such Borrower hereunder to the Bank from
whom the amount was so received or in or towards the
purchase of any amount of any currency to be so
applied; and
(ii) secondly, in or towards payment (on the date, and in
the currency and funds, of receipt) to such account
with such bank in the principal financial centre of
the country of the currency of such payment as such
Borrower shall have previously notified to the Agent
for the purpose; and
(b) in the case of any other payment, be made available by the
Agent to the person for whose account such payment was
received (in the case of a Bank, for the account of its
relevant Facility Office) for value the same day by transfer
to such account of such person with such bank in the principal
financial centre of the country of the currency of such
payment as such person shall have previously notified to the
Agent.
20.4 NO SET-OFF All payments required to be made by any of the Obligors
hereunder shall be calculated without reference to any set-off or counterclaim
and shall be made free and clear of and without any deduction for or on account
of any set-off or counterclaim.
20.5 CLAWBACK Where a sum is to be paid hereunder to the Agent for account of
another person, the Agent shall not be obliged to make the same available to
that other person or to enter into or perform any exchange contract in
connection therewith until it has been able to establish to its satisfaction
that it has actually received such sum, but if it does so and it proves to be
the case that it had not actually received such sum, then the person (the
"RELEVANT PERSON") to whom such sum or the proceeds of such exchange contract
was so made available shall on request repay the same to the
Agent together with an amount sufficient to put the Agent in no better or worse
position than that in which it would have been had it not paid out such sum or
the proceeds of such exchange contract prior to its having received such sum
Provided that, if the relevant person is a Borrower, the Agent will request
repayment of the relevant sum or proceeds from such Borrower only if the Agent
believes that the person from whom such sum or proceeds are to be received will
not within a reasonable period of time pay such sum or proceeds to the Agent.
20.6 NON-PAYMENT BY BANKS Where the Agent reasonably believes that a Bank will
not make any Advance or pay any sum it is required to make or pay in accordance
with this Agreement then the Agent shall promptly inform the Guarantor of this
belief Provided that it is not reasonable for the Agent to form this belief
solely on the grounds that payment from a Bank has not been received at the time
it is due.
21. SET-OFF
21.1 CONTRACTUAL SET-OFF Each of the Obligors authorises each Bank to apply any
credit balance to which such Obligor is entitled on any account of such Obligor
with that Bank in satisfaction of any sum due and payable from such Obligor to
such Bank hereunder but unpaid; for this purpose, each Bank is authorised to
purchase with the moneys standing to the credit of any such account such other
currencies as may be necessary to effect such application.
21.2 SET-OFF NOT MANDATORY No Bank shall be obliged to exercise any right given
to it by Clause 21.1 (CONTRACTUAL SET-OFF).
22. SHARING
22.1 REDISTRIBUTION OF PAYMENTS Subject to Clause 22.3 (RECOVERIES THROUGH LEGAL
PROCEEDINGS), if at any time, the proportion which any Bank (a "RECOVERING
BANK") has received or recovered (whether by payment, the exercise of a right of
set-off or combination of accounts or otherwise) in respect of its portion of
any payment (a "RELEVANT PAYMENT") to be made under this Agreement by any of the
Obligors for account of such Recovering Bank and one or more other Banks is
greater (the portion of such receipt or recovery giving rise to such excess
proportion being herein called an "EXCESS AMOUNT") than the proportion thereof
so received or recovered by the Bank or Banks so receiving or recovering the
smallest proportion thereof, then:
(a) such Recovering Bank shall inform the Agent of such receipt or
recovery and pay to the Agent an amount equal to such excess
amount;
(b) there shall thereupon fall due from such Obligor to such
Recovering Bank an amount equal to the amount paid out by such
Recovering Bank pursuant to paragraph (a) above, the amount so
due being, for the purposes hereof, treated as if it were an
unpaid part of such Recovering Bank's portion of such relevant
payment; and
(c) the Agent shall treat the amount received by it from such
Recovering Bank pursuant to paragraph (a) above as if such
amount had been received by it from such Obligor in respect of
such relevant payment and shall pay the same to the persons
entitled thereto (including such Recovering Bank) PRO RATA to
their respective entitlements thereto,
Provided that to the extent that any excess amount is attributable to a payment
to a Bank pursuant to paragraph (a)(i) of Clause 20.3 (PAYMENTS BY THE AGENT)
such portion of such excess amount as is so attributable shall not be required
to be shared pursuant hereto.
22.2 REPAYABLE RECOVERIES If any sum (a "RELEVANT SUM") received or recovered by
a Recovering
Bank in respect of any amount owing to it by any of the Obligors becomes
repayable and is repaid by such Recovering Bank, then:
(i) each Bank which has received a share of such relevant sum by
reason of the implementation of Clause 22.1 (REDISTRIBUTION OF
PAYMENTS) shall, upon request of the Agent, pay to the Agent
for account of such Recovering Bank an amount equal to its
share of such relevant sum; and
(ii) there shall thereupon fall due from such Obligor to each such
Bank an amount equal to the amount paid out by it pursuant to
paragraph (a) above, the amount so due being, for the purposes
hereof, treated as if it were the sum payable to such Bank
against which such Bank's share of such relevant sum was
applied.
22.3 RECOVERIES THROUGH LEGAL PROCEEDINGS If any Bank shall commence any action
or proceeding in any court to enforce its rights hereunder after consultation
with the other Banks and with the consent of an Instructing Group (such consent
not to be unreasonably withheld) and, as a result thereof or in connection
therewith, shall receive any excess amount (as defined in Clause 22.1
(REDISTRIBUTION OF PAYMENTS)), then such Bank shall not be required to share any
portion of such excess amount with any Bank which has the legal right to, but
does not, join in such action or proceeding or commence and diligently prosecute
a separate action or proceeding to enforce its rights in another court.
PART 10
FEES, COSTS AND EXPENSES
23. FEES
23.1 ARRANGEMENT FEE VNU N.V. and VNU Ireland shall pay to the Arrangers the
arrangement fee specified in the letter of even date herewith from the Arrangers
to the Guarantor and VNU Ireland at the time, and in the amount, specified in
such letter.
23.2 AGENCY FEE VNU N.V. and VNU Ireland shall pay to the Agent for its own
account the agency fees specified in the letter of even date herewith from the
Agent to the Guarantor at the times, and in the amounts, specified in such
letter.
23.3 COMMITMENT COMMISSION VNU Ireland and VNU shall pay to the Agent for
account of each Bank a commitment commission on the amount of such Bank's
Available Commitment from time to time during the period beginning on the date
hereof and ending on the Final Maturity Date, such commitment commission to be
calculated at a rate per annum equal to 50% of the Applicable Margin at such
time and payable in arrear on the last day of each successive period of three
months which ends during such period and on the Final Maturity Date.
23.3 SPLIT OF FEES The fees referred to in this Clause 23.1 shall be apportioned
between, and shall be payable by, VNU N.V. and VNU Ireland in the percentages
from time to time agreed between the Arrangers, VNU N.V. and VNU Ireland (but
without prejudice the guarantee given by VNU N.V.
under the Clause 17 (GUARANTEE AND INDEMNITY)).
24. COSTS AND EXPENSES
24.1 TRANSACTION EXPENSES The Borrowers shall, on demand of the Agent, reimburse
the Agent and each of the Arrangers for all costs and expenses (including
reasonable legal fees) together with any VAT thereon incurred by it in
connection with the negotiation, preparation and execution of this Agreement and
the completion of the transactions herein contemplated, subject to any
limitations thereon separately agreed between the Borrowers and the Agent.
24.2 PRESERVATION AND ENFORCEMENT OF RIGHTS Each of the Borrowers shall, from
time to time on
demand of the Agent, reimburse the Agent, the Arrangers and the Banks for all
costs and expenses (including legal fees) together with any VAT thereon incurred
in or in connection with the preservation and/or enforcement of any of the
rights of the Agent, the Arrangers and the Banks under this Agreement.
24.3 STAMP TAXES Each of the Borrowers shall pay all stamp, registration and
other taxes to which this Agreement or any judgment given in connection herewith
is or at any time may be subject and shall, from time to time on demand of the
Agent, indemnify the Agent, the Arrangers and the Banks against any liabilities,
costs, claims and expenses resulting from any failure to pay or any delay in
paying any such tax.
24.4 AGENTS' COSTS In case of any amendment or proposed amendment hereto
requested by the Guarantor, the Borrowers shall discuss with the Agent the costs
involved and upon agreement in respect thereof shall compensate the Agent in
respect thereof.
24.5 BANKS' LIABILITIES FOR COSTS If any Borrower fails to perform any of its
obligations under this Clause 24, each Bank shall, in its Proportion, indemnify
the Agent and the Arrangers against any loss incurred by it as a result of such
failure and such Borrower shall forthwith reimburse each Bank for any payment
made by it pursuant to this Clause 24.5.
PART 11
AGENCY PROVISIONS
25. THE AGENT, THE ARRANGER AND THE BANKS
25.1 APPOINTMENT OF THE AGENT Each of the Arrangers and each Bank hereby
appoints the Agent to act as its agent in connection herewith and authorises the
Agent to exercise such rights, powers, authorities and discretions as are
specifically delegated to it by the terms hereof together with all such rights,
powers, authorities and discretions as are reasonably incidental thereto,
provided that the Agent shall not start any legal proceedings on behalf or in
the name of any Bank without that Bank's prior written consent.
25.2 AGENT'S DISCRETIONS The Agent may:
(a) assume that (i) any representation made by any of the Obligors
in connection herewith is true, (ii) no Event of Default or
Potential Event of Default has occurred, (iii) none of the
Obligors is in breach of or default under its obligations
hereunder and (iv) any right, power, authority or discretion
vested herein upon an Instructing Group, the Banks or any
other person or group of persons has not been exercised unless
in any such case its agency department has, in its capacity as
agent for the Banks actual knowledge of or received actual
notice to the contrary from any other party hereto;
(b) assume that the Facility Office of each Bank is that
identified with its signature below (or, in the case of a
Transferee, at the end of the Bank Transfer Certificate to
which it is a party as Transferee) until it has received from
such Bank a notice designating some other office of such Bank
to replace any such Facility Office and act upon any such
notice until the same is superseded by a further such notice;
(c) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or
services may to it seem necessary, expedient or desirable and
rely upon any advice so obtained;
(d) rely as to any matters of fact which might reasonably be
expected to be within the knowledge of any of the Obligors
upon a certificate signed by or on behalf of such Obligor;
(e) rely upon any communication or document believed by it to be
genuine;
(f) refrain from exercising any right, power or discretion vested
in it as agent hereunder unless and until instructed by an
Instructing Group as to whether or not such right, power or
discretion is to be exercised and, if it is to be exercised,
as to the manner in which it should be exercised; and
(g) refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding
arising out of or in connection with this Agreement until it
shall have received such security as it may require (whether
by way of payment in advance or otherwise) for all costs,
claims, losses, expenses (including legal fees) and
liabilities together with any VAT thereon which it will or may
expend or incur in complying with such instructions.
25.3 AGENT'S OBLIGATIONS The Agent shall:
(a) promptly inform each Bank of the contents of any notice or
document received by it
in its capacity as Agent from any of the Obligors hereunder;
(b) promptly notify each Bank of the occurrence of any Event of
Default or any default by any of the Obligors in the due
performance of or compliance with its obligations under this
Agreement of which the Agent has actual knowledge or received
actual notice from any other party hereto;
(c) save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an Instructing
Group, which instructions shall be binding on the Arrangers
and the Banks; and
(d) if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as
agent hereunder.
25.4 EXCLUDED OBLIGATIONS Notwithstanding anything to the contrary expressed or
implied herein, neither the Agent nor the Arrangers shall:
(a) be bound to enquire as to (i) whether or not any
representation made by any of the Obligors in connection
herewith is true, (ii) the occurrence or otherwise of any
Event of Default or Potential Event of Default, (iii) the
performance by any of the Obligors of its obligations
hereunder or (iv) any breach of or default by any of the
Obligors of or under its obligations hereunder;
(b) be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own account;
(c) be bound to disclose to any other person any information
relating to any member of the VNU Group if such disclosure
would or might in its opinion constitute a breach of any law
or regulation or be otherwise actionable at the suit of any
person; or
(d) be under any obligations or fiduciary duties other than those
for which express provision is made herein.
25.5 INDEMNIFICATION Each Bank shall, in its Proportion, from time to time on
demand by the Agent, indemnify the Agent against any and all costs, claims,
losses, expenses (including legal fees) and liabilities together with any VAT
thereon which the Agent may incur, otherwise than by reason of its own gross
negligence or wilful misconduct, in acting in its capacity as agent hereunder.
25.6 EXCLUSION OF LIABILITIES Neither the Agent nor the Arrangers accept any
responsibility for the accuracy and/or completeness of any information supplied
by any of the Obligors in connection herewith or for the legality, validity,
effectiveness, adequacy or enforceability of this Agreement and neither the
Agent nor the Arrangers shall be under any liability as a result of taking or
omitting to take any action in relation to this Agreement, save in the case of
gross negligence or wilful misconduct.
25.7 NO ACTIONS Each of the Banks agrees that it will not assert or seek to
assert against any director, officer or employee of either the Agent or the
Arranger any claim it might have against any of them in respect of the matters
referred to in Clause 25.6 (EXCLUSION OF LIABILITIES).
25.8 BUSINESS WITH THE VNU GROUP The Agent and the Arrangers may accept deposits
from, lend money to and generally engage in any kind of banking or other
business with any member of the VNU Group.
25.9 RESIGNATION AND REMOVAL The Agent may resign, and an Instructing Group may
remove the Agent from, its appointment hereunder at any time without assigning
any reason therefor by giving
not less than thirty days' prior written notice to that effect to each of the
other parties hereto Provided that no such resignation or removal shall be
effective until a successor for such Agent is appointed in accordance with the
succeeding provisions of this Clause 25.
25.10 SUCCESSOR AGENT If an Agent gives notice of its resignation or (as the
case may be) an Instructing Group gives notice of the removal of the Agent
pursuant to Clause 25.9 (RESIGNATION AND REMOVAL), then any reputable and
experienced bank or other financial institution may be appointed as a successor
to the Agent by an Instructing Group (subject to the prior written consent of
the Guarantor, not to be unreasonably withheld) during the period of such notice
but, if no such successor is so appointed, the Agent may appoint such a
successor itself (subject to the prior written consent of the Guarantor, not to
be unreasonably withheld).
25.11 RIGHTS AND OBLIGATIONS If a successor to the Agent is appointed under the
provisions of Clause 25.10 (SUCCESSOR AGENT), then (a) the retiring Agent shall
be discharged from any further obligation hereunder but shall remain entitled to
the benefit of the provisions of this Clause 25 and (b) its successor and each
of the other parties hereto shall have the same rights and obligations amongst
themselves as they would have had if such successor had been a party hereto.
25.12 OWN RESPONSIBILITY It is understood and agreed by each Bank that it has
itself been, and will continue to be, solely responsible for making its own
independent appraisal of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of each member of the
VNU Group and, accordingly, each Bank warrants to the Agent and the Arrangers
that it has not relied on and will not hereafter rely on the Agent or the
Arrangers:
(a) to check or enquire on its behalf into the adequacy, accuracy
or completeness of any information provided by any of the
Obligors in connection with this Agreement or the transactions
herein contemplated (whether or not such information has been
or is hereafter circulated to such Bank by the Agent or the
Arrangers); or
(b) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or
nature of any member of the VNU Group.
25.13 AGENCY DIVISIONS SEPARATE In acting as Agent and/or Arranger hereunder for
the Banks the Agent and each of the Arrangers shall be regarded as acting
through its agency division which shall be treated as a separate entity from any
other of its divisions or departments and, notwithstanding the foregoing
provisions of this Clause 25, any information received by some other division or
department of the Agent or, as the case may be, the relevant Arranger may be
treated as confidential and shall not be regarded as having been given to the
Agent's or, as the case may be, the relevant Arranger's agency division.
25.14 CONFIDENTIAL INFORMATION Notwithstanding anything to the contrary
expressed or implied herein and without prejudice to the provisions of Clause
25.13 (AGENCY DIVISIONS SEPARATE), the Agent shall not as between itself and the
Banks be bound to disclose to any Bank or other person any information which is
supplied by any member of the VNU Group to the Agent in its capacity as agent
hereunder for the Banks and which is identified by such member of the VNU Group
at the time it is so supplied as being confidential information Provided that
the Agent may disclose to the Banks any information which in the opinion of the
Agent relates to an Event of Default or Potential Event of Default or in respect
of which the Banks have given a confidentiality undertaking in a form
satisfactory to the Agent and the Guarantor.
25.15 PAYMENTS BY THE AGENT In relation to the payment of any amount denominated
in the euro, the Agent shall not be liable to the Borrowers or any of the Banks
in any way whatsoever for any delay, or the consequences of any delay, in the
crediting to any account of any amount required by this Agreement to be paid by
the Agent if the Agent shall have taken all relevant steps to achieve, on
the date required by this Agreement, the payment of such amount in immediately
available, freely transferable, cleared funds (in the euro unit) to the account
with the bank in the principal financial centre in the participating member
state which the Borrowers or, as the case may be, any Bank shall have specified
for such purpose. In this Clause 25.15, "all relevant steps" means all such
steps as may be prescribed from time to time by the regulations or operating
procedures of the Trans-European Automated Real-Time Gross Settlement Transfer
System (TARGET) or any system which replaces TARGET for the purposes of clearing
or settling payments of the euro.
PART 12
ASSIGNMENTS AND TRANSFERS
26. ASSIGNMENTS AND TRANSFERS
26.1 BINDING AGREEMENT This Agreement shall be binding upon and enure to the
benefit of each party hereto and its or any subsequent successors, transferees
and assigns.
26.2 NO ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS None of the Obligors shall be
entitled to assign or transfer all or any of its rights, benefits and
obligations hereunder other than in accordance with Clause 26.11.
26.3 ASSIGNMENTS AND TRANSFERS BY BANKS Any Bank may, at any time subject to at
least ten business days' prior written notice to the Guarantor (during which
time, if it is after the Syndication Date, such Bank shall consult the Guarantor
in respect of the relevant assignment or transfer) assign all or any of its
rights and benefits hereunder or transfer in accordance with Clause 26.5
(TRANSFERS BY BANKS) all or any of its rights, benefits and obligations
hereunder to any other bank or financial institution (in relation to which the
representation contained in Clause 10.3 (BANK'S REPRESENTATION) is true on the
date on which such assignment or transfer takes effect) Provided that (unless
the relevant assignment or transfer is of all of a Bank's rights and benefits or
all of its rights, benefits and obligations (as the case may be)) following such
assignment or transfer:
(a) each Bank shall retain a portion of its share of the Advances
having a Dollar Amount of not less than US$15,000,000; and
(b) the relevant assignee's or Transferee Bank's share of the
Dollar Amounts of Advances is at least equal to US$15,000,000.
26.4 ASSIGNMENTS BY BANKS If any Bank assigns all or any of its rights and
benefits hereunder in accordance with Clause 26.3 (ASSIGNMENTS AND TRANSFERS BY
BANKS), then, unless and until the assignee has agreed with the Agent, the
Arrangers and the other Banks that it shall be under the same obligations
towards each of them as it would have been under if it had been an original
party hereto as a Bank (whereupon such assignee shall become a party hereto as a
"Bank"), the Agent, the Arrangers and the other Banks shall not be obliged to
recognise such assignee as having the rights against each of them which it would
have had if it had been such a party hereto.
26.5 TRANSFERS BY BANKS If any Bank wishes to transfer all or any of its rights,
benefits and/or obligations hereunder as contemplated in (and only in accordance
with) Clause 26.3 (ASSIGNMENTS AND TRANSFERS BY BANKS) then such transfer may be
effected by the delivery to the Agent of a duly completed and duly executed Bank
Transfer Certificate (or other document having substantially the same effect) in
which event, on the later of the Bank Transfer Date specified in such Bank
Transfer Certificate or other document and the fifth business day after (or such
earlier business day endorsed by the Agent on such Bank Transfer Certificate or
other document falling on or after) the date of delivery of such Bank Transfer
Certificate or other document to the Agent:
(a) to the extent that in such Transfer Certificate or other
document the Bank party thereto seeks to transfer its rights,
benefits and obligations hereunder, each of the Obligors and
such Bank shall be released from further obligations towards
one another hereunder and their respective rights against one
another shall be cancelled (such rights and obligations being
referred to in this Clause 26.5 as "DISCHARGED RIGHTS AND
OBLIGATIONS");
(b) each of the Obligors and the Transferee Bank party thereto or
to such other document
shall assume obligations towards one another and/or acquire
rights against one another which differ from such discharged
rights and obligations only insofar as such Obligor and such
Transferee Bank have assumed and/or acquired the same in place
of such Obligor and such Bank;
(c) the Agent, the Arrangers, such Transferee Bank and the other
Banks shall acquire the same rights and benefits and assume
the same obligations between themselves as they would have
acquired and assumed had such Transferee Bank been an original
party hereto as a Bank with the rights, benefits and/or
obligations acquired or assumed by it as a result of such
transfer; and
(d) such Transferee Bank shall become a party hereto as a "Bank".
26.6 TRANSFER FEES On the date upon which a transfer takes effect pursuant to
Clause 26.5 (TRANSFERS BY BANKS) (save for a transfer by a Bank of all of its
rights, benefits and/or obligations hereunder to a subsidiary, holding company
or subsidiary of a holding company of such Bank) the Transferee Bank in respect
of such transfer shall pay to the Agent for its own account a transfer fee of $
1,000.
26.7 DISCLOSURE OF INFORMATION Any Bank may disclose to any actual or potential
assignee or Transferee Bank or to any person who may otherwise enter into
contractual relations with such Bank in relation to this Agreement (each a
"RELEVANT PERSON"), provided that any such relevant person has entered into a
confidentiality agreement in a form agreed between the Guarantor and such Bank
(but subject to Clause 26.8 (EXCEPTIONS)), such information about the Obligors
and the VNU Group as such Bank shall consider appropriate.
26.8 EXCEPTIONS Any Bank may, notwithstanding Clause 26.7 (DISCLOSURE OF
INFORMATION) disclose at any time any information:
(a) which at the relevant time is in the public domain;
(b) which was lawfully in its possession or its advisers prior to
such disclosure without being subject to a confidentiality
undertaking;
(c) the disclosure of which is required by law or court order or
any competent regulatory body or which is necessitated by any
legal proceedings or audit requirement upon prior notice to
the Guarantor;
(d) the disclosure of which is made to an affiliate of such Bank
(where "AFFILIATE" for this purpose means a subsidiary or
holding company, or a subsidiary of a holding company, of such
Bank) in circumstances where it is such Bank's usual practice
to make such disclosure or where such disclosure is required
as part of such Bank's management or reporting policies upon
prior notice to the Guarantor and subject to such affiliate
entering into a confidentiality undertaking in respect thereof
with the Guarantor;
(e) where such disclosure is made to the Agent, the Arrangers or
any other Bank; or
(f) where such disclosure is made to its auditors or legal or
other professional advisers.
26.9 LIMITATION ON GROSS-UPS AND INDEMNITIES If any Bank assigns or transfers
(in accordance with Clause 26.3 (ASSIGNMENTS AND TRANSFERS BY BANKS)) any of its
rights, benefits and obligations hereunder or changes its Facility Office and,
at the time of such assignment, transfer or change, there arises, or it is
reasonably foreseeable at the time of such assignment, transfer or change that
as a result
of such assignment, transfer or change there would arise, an obligation on the
part of a Borrower to such Bank or its assignee or transferee or any other
person to pay or indemnify any amount in excess of the amount it would have been
obliged to pay had such assignment, transfer or change not occurred, then such
Borrower shall not be obliged to pay the amount of such excess Provided that
this Clause 26.9 (LIMITATION ON GROSS-UPS AND INDEMNITIES) shall not apply in
relation to any assignment, transfer or change made at the request of an
Obligor.
26.10 ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS No Obligor shall be entitled to
transfer all or any of its rights, benefits and obligations hereunder.
26.11 TRANSFERS OF ADVANCES BY BORROWERS If any Borrower wishes to transfer all
of its rights, benefits and/or obligations in respect of any Advance made
available to it hereunder then such transfer may be effected by the giving of no
less than ten business days notice to the Agent and delivery to the Agent of a
duly completed and duly executed Borrower Transfer Certificate in the form set
out in Part B of the Second Schedule (together with, if the party to which such
Borrower wishes to make such transfer is an Additional Borrower, a duly
completed and duly executed Accession Agreement in the form set out in the Fifth
Schedule and each of the condition precedent documents referred to therein, in
form and substance satisfactory to the Agent, acting reasonably, such that such
Additional Borrower shall become a Borrower hereunder on the Effective Borrower
Transfer Date specified in such Borrower Transfer Certificate), in which event
on the Effective Borrower Transfer Date:
(a) to the extent that in such Borrower Transfer Certificate the
Borrower party thereto seeks to transfer its rights, benefits
and obligations in and to such Advance, such Borrower shall be
released from further obligations owed to the other parties
hereto in respect of such Advance and the rights of the other
parties hereto against such Borrower in respect of such
Advance shall be cancelled (such rights and obligations being
referred to in this Clause 28.11 as "DISCHARGED RIGHTS AND
OBLIGATIONS") ;
(b) each of the Agent, the Arrangers, the Banks and the Transferee
Borrower party thereto shall assume obligations towards one
another and/or acquire rights against one another which differ
from such discharged rights and obligations only insofar as
the Agent, the Arrangers, the Banks and such Transferee
Borrower have assumed and/or acquired the same in place of
such Borrower, the Agent, the Arrangers and the Banks;
(c) the Obligors and the Transferee Borrower shall acquire the
same rights and benefits and assume the same obligations
towards one another as they would have acquired and assumed
had such Transferee Borrower been an original party hereto as
a Borrower with the rights, benefits and/or obligations
acquired or assumed by it as a result of such transfer; and
(d) such Transferee Borrower shall become a party hereto as a
"Borrower".
26.12 PAYMENT OF INTEREST ON TRANSFERRED ADVANCES If any Borrower transfers all
or part of its rights, benefits and/or obligations in respect of any Advance
pursuant to Clause 26.11 (TRANSFERS OF ADVANCES BY BORROWERS) other than on the
last day of the Term relating thereto, then save as agreed between the relevant
Borrowers and the Agent:
(i) the Borrower to which such rights, benefits and/or obligations
are transferred shall pay accrued interest on such Advance, on
the last day of such Term, for the period from the date on
which such Advance was transferred to it until the last day of
such Term; and
(ii) the Borrower making such transfer shall pay accrued interest
on such Advance on the last day of such Term for the period
from the first day of such Term until the date of such
transfer .
PART 13
MISCELLANEOUS
27. CALCULATIONS AND EVIDENCE OF DEBT
27.1 BASIS OF ACCRUAL Interest shall accrue from day to day and shall be
calculated on the basis of a year of 360 days (or, in any case where market
practice differs, in accordance with market practice) and the actual number of
days elapsed.
27.2 PROPORTIONATE REDUCTIONS Any repayment of an Advance denominated in euros
shall reduce the amount of such Advance by the amount of such euros repaid and
shall reduce the Dollar Amount of such Advance proportionately.
27.3 QUOTATIONS If on any occasion a Reference Bank or Bank fails to supply the
Agent with a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be determined
from those quotations which are supplied to the Agent.
27.4 EVIDENCE OF DEBT Each Bank shall maintain in accordance with its usual
practice accounts evidencing the amounts from time to time lent by and owing to
it hereunder.
27.5 CONTROL ACCOUNTS The Agent shall maintain on its books a control account or
accounts in which shall be recorded (a) the amount of any Advance made or
arising hereunder and each Bank's share therein, (b) the amount of all
principal, interest and other sums due or to become due from any of the Obligors
to any of the Banks hereunder and each Bank's share therein and (c) the amount
of any sum received or recovered by the Agent hereunder and each Bank's share
therein.
27.6 PRIMA FACIE EVIDENCE In any legal action or proceeding arising out of or in
connection with this Agreement, the entries made in the accounts maintained
pursuant to Clause 27.4 (EVIDENCE OF DEBT) and Clause 27.5 (CONTROL ACCOUNTS)
shall be PRIMA FACIE evidence of the existence and amounts of the specified
obligations of the Obligors in the absence of manifest error.
27.7 CERTIFICATES OF BANKS A certificate of a Bank as to (a) the amount by which
a sum payable to it hereunder is to be increased under Clause 9.1 (TAX GROSS-UP)
or (b) the amount for the time being required to indemnify it against any such
cost, payment or liability as is mentioned in Clause 9.2 (TAX INDEMNITY) or
Clause 11.1 (INCREASED COSTS) shall, in the absence of manifest error, be PRIMA
FACIE evidence of the existence and amounts of the specified obligations of the
Obligors.
27.8 AGENT'S CERTIFICATE A certificate of the Agent as to the amount at any time
due from any of the Borrowers hereunder or the amount which, but for any of the
obligations of such Borrower hereunder being or becoming void, voidable,
unenforceable or ineffective, at any time would have been due from such Borrower
hereunder shall, in the absence of manifest error, be conclusive for the
purposes of Part 7 (GUARANTEE).
27.9 POWERS OF ATTORNEY If any party hereto is represented by an attorney or
attorneys in connection with the signing and/or executing and/or delivery of
this Agreement or any agreement or document referred to herein or made pursuant
hereto and the relevant power or powers of attorney is or are expressed to be
governed by the laws of a particular jurisdiction, it is hereby expressly
acknowledged and accepted by the other parties hereto that such laws shall
govern the existence and extent of such attorney's or attorneys' authority and
the effects of the exercise thereof.
28. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
28.1 REMEDIES AND WAIVERS No failure to exercise, nor any delay in exercising,
on the part of the Agent, the Arranger and the Banks or any of them, any right
or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any other right
or remedy. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
28.2 PARTIAL INVALIDITY If, at any time, any provision hereof is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions hereof nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be affected or impaired
thereby.
29. NOTICES
29.1 COMMUNICATIONS IN WRITING Each communication to be made hereunder shall,
unless otherwise stated, be made in writing and by fax, telex or letter.
29.2 DELIVERY Any communication or document to be made or delivered by one
person to another pursuant to this Agreement shall (unless that other person has
by fifteen days' written notice to the Agent specified another address) be made
or delivered to that other person at the address identified with its signature
below (or, in the case of a Transferee, at the end of the Bank Transfer
Certificate to which it is a party as Transferee) and shall be deemed to have
been made or delivered when despatched (in the case of any communication made by
fax or telex) or (in the case of any communication made by letter) when left at
that address or (as the case may be) ten days after being deposited in the post
postage prepaid in an envelope addressed to it at that address Provided that:
(a) any such communication or document to be made or delivered to
the Agent shall be effective only when received by the Agent
and then only if the same is expressly marked for the
attention of the department or officer identified with the
Agent's signature below (or such other department or officer
as the Agent shall from time to time specify for this
purpose);
(b) any communication or document to be made or delivered to any
Bank having more than one Facility Office shall (unless such
Bank has by fifteen days' written notice to the Agent
specified another address) be made or delivered to such Bank
at the address identified with its signature below (or, in the
case of a Transferee, at the end of the Bank Transfer
Certificate to which it is a party as Transferee) as its main
Facility Office;
(c) any communication or document sent to any Borrower other than
the Guarantor shall be copied to the Guarantor; and
(d) any communication or document sent to any Obligor or Obligors
by fax shall be confirmed by dispatch of the relevant
communication or document to the relevant Obligor or Obligors
by courier, registered mail or telex at the option of the
party making such communication.
29.3 ENGLISH LANGUAGE Each communication and document made or delivered by one
party to another pursuant to this Agreement shall be in the English language or
accompanied by an accurate translation thereof into English.
30. AMENDMENTS
30.1 AMENDMENT PROCEDURES The Agent, if it has the prior written consent of an
Instructing Group, and the Obligors may from time to time agree in writing to
amend this Agreement or to waive, prospectively or retrospectively, any of the
requirements of this Agreement and any amendments or
waivers so agreed shall be binding on all the Banks, the Arrangers and the
Obligors Provided that:
(a) no such waiver or amendment shall subject any party hereto to
any new or additional obligations without the consent of such
party;
(b) without the prior written consent of all the Banks, no such
amendment or waiver shall:
(i) amend or waive any provision of Clause 22 (SHARING),
Clause 17 (GUARANTEE AND INDEMNITY) or this Clause
30;
(ii) reduce the proportion of any amount received or
recovered (whether by way of set-off, combination of
accounts or otherwise) in respect of any amount due
from any of the Borrowers hereunder to which any Bank
is entitled;
(iii) change the principal amount of or currency of any
Advance, or defer any Repayment Date or the Final
Maturity Date;
(iv) reduce the Applicable Margin, reduce the amount or
change the currency or defer the date for any payment
of interest, fees or any other amount payable
hereunder to all or any of the Agent, the Arrangers
and the Banks;
(v) amend the definition of Instructing Group; or
(vi) amend any provision which contemplates the need for
the consent or approval of all the Banks; and
(c) notwithstanding any other provisions hereof, the Agent shall
not be obliged to agree to any such amendment or waiver if the
same would:
(i) (unless the Agent has received the prior consent of
all the Banks) amend or waive any provision of this
Clause 30, Clause 24 (COSTS AND EXPENSES) or Part 11
(AGENCY PROVISIONS); or
(ii) otherwise amend or waive the Agent's rights hereunder
or subject either the Agent or the Arrangers to any
additional obligations hereunder.
30.2 AMENDMENT COSTS If the Borrowers request any amendment or waiver in
accordance with Clause 30.1 (AMENDMENT PROCEDURES) then the Borrowers shall, on
demand of the Agent, reimburse the Agent, the Arrangers and the Banks for all
reasonable costs and expenses (including reasonable legal fees) together with
any VAT thereon incurred by the Agent, the Arrangers and the Banks in responding
to or complying with such request.
PART 14
LAW AND JURISDICTION
31. LAW AND JURISDICTION
31.1 ENGLISH LAW This Agreement shall be governed by, and shall be construed in
accordance with, English law.
31.2 ENGLISH COURTS Each of the parties hereto irrevocably agrees for the
benefit of each of the Agent, the Arrangers and the Banks that the courts of
England shall have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in connection
with this Agreement (respectively "PROCEEDINGS" and "DISPUTES") and, for such
purposes, irrevocably submits to the jurisdiction of such courts.
31.3 APPROPRIATE FORUM Each of the Obligors irrevocably waives any objection
which it might now or hereafter have to the courts referred to in Clause 31.2
(ENGLISH COURTS) being nominated as the forum to hear and determine any
Proceedings and to settle any Disputes and agrees not to claim that any such
court is not a convenient or appropriate forum.
31.4 SERVICE OF PROCESS Each of the Obligors agrees that the process by which
any Proceedings are begun may be served on it by being delivered in connection
with any Proceedings in England, to Law Debenture Corporate Services Limited,
Xxxxxxx Xxxxx, 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, or other its registered
office for the time being. If the appointment of the person mentioned in this
Clause 31.4 ceases to be effective in respect of any of the Obligors, such
Obligor shall immediately appoint a further person in England to accept service
of process on its behalf in England and, failing such appointment within 15
days, the Agent shall be entitled to appoint such a person by notice to such
Obligor. Nothing contained herein shall affect the right to serve process in any
other manner permitted by law.
31.5 NON-EXCLUSIVE SUBMISSIONS The submission to the jurisdiction of the courts
referred to in Clause 31.2 (ENGLISH COURTS) shall not (and shall not be
construed so as to) limit the right of the Agent, the Arranger and the Banks or
any of them to take Proceedings against any of the Obligors in any other court
of competent jurisdiction nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other jurisdiction
(whether concurrently or not) if and to the extent permitted by applicable law.
31.6 CONSENT TO ENFORCEMENT Each of the Obligors hereby consents generally in
respect of any Proceedings to the issue of any process in connection with such
Proceedings including the making, enforcement or execution against any property
whatsoever (irrespective of its use or intended use) of any order or judgment
which may be made or given in such Proceedings.
31.7 WAIVER OF IMMUNITY To the extent that any of the Obligors may in any
jurisdiction claim for itself or its assets immunity from suit, execution,
attachment (whether in aid of execution, before judgment or otherwise) or other
legal process and to the extent that in any such jurisdiction there may be
attributed to itself or its assets such immunity (whether or not claimed), such
Obligor hereby irrevocably agrees not to claim and hereby irrevocably waives
such immunity to the full extent permitted by the laws of such jurisdiction.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
THE FIRST SCHEDULE
THE BANKS
BANK COMMITMENT ($)
ABN AMRO BANK N.V. 1,500,000,000
XXXXXXX XXXXX CAPITAL CORPORATION 1,500,000,000
THE SECOND SCHEDULE
PART A
FORM OF BANK TRANSFER CERTIFICATE
To: [Agent]
BANK TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "FACILITY AGREEMENT") dated 15 August 1999 whereby a $
3,000,000,000 revolving credit facility was made available to VNU N.V. and VNU
Ireland as original borrowers by a group of banks on whose behalf ABN AMRO Bank
N.V. acted as agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank, Transferee Bank's
Participation and Amount Transferred are defined in the schedule hereto.
2. The Bank (i) confirms that the Bank's Participation accurately summarises its
participation in the Facility Agreement and (ii) requests the Transferee Bank to
accept and procure the transfer to the Transferee Bank of a percentage of the
Bank's Participation by counter-signing and delivering this Bank Transfer
Certificate to the Agent at its address for the service of notices specified in
the Facility Agreement.
3. The Transferee hereby requests the Agent to accept this Bank Transfer
Certificate as being delivered to the Agent pursuant to and for the purposes of
Clause 26.5 (TRANSFERS BY BANKS) of the Facility Agreement so as to take effect
in accordance with the terms thereof on the Bank Transfer Date or on such later
date as may be determined in accordance with the terms thereof.
4. The Transferee Bank hereby represents that it is a qualifying lender such
that all payments received or receivable by it under the Facility Agreement may
be made free and clear without deduction or withholding on account of tax.
5. The Transferee Bank confirms that it has received a copy of the Facility
Agreement together with such other information as it has required in connection
with this transaction and that it has not relied and will not hereafter rely on
the Bank to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such information and
further agrees that it has not relied and will not rely on the Bank to assess or
keep under review on its behalf the financial condition, creditworthiness,
condition, affairs, status or nature of any of the Obligors.
6. The Transferee Bank hereby undertakes with the Bank and each of the other
parties to the Facility Agreement that it will perform in accordance with their
terms all those obligations which by the terms of the Facility Agreement will be
assumed by it after delivery of this Bank Transfer Certificate to the Agent and
satisfaction of the conditions (if any) subject to which this Bank Transfer
Certificate is expressed to take effect.
7. The Bank makes no representation or warranty and assumes no responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Facility Agreement or any document relating thereto and
assumes no responsibility for the financial condition of any of the Obligors or
for the performance and observance by any of the Obligors of any of its
obligations under the Facility Agreement or any document relating thereto and
any and all such conditions and warranties, whether express or implied by law or
otherwise, are hereby excluded.
8. The Bank hereby gives notice that nothing herein or in the Facility Agreement
(or any document relating thereto) shall oblige the Bank to (a) accept a
re-transfer from the Transferee Bank of the whole or any part of its rights,
benefits and/or obligations under the Facility Agreement transferred pursuant
hereto or (b) support any losses directly or indirectly sustained or incurred by
the Transferee Bank for any reason whatsoever including the non-performance by
any of the Obligors or any other party to the Facility Agreement (or any
document relating thereto) of its obligations under any such document. The
Transferee Bank hereby acknowledges the absence of any such obligation as is
referred to in (a) or (b) above.
9. This Bank Transfer Certificate and the rights, benefits and obligations of
the parties hereunder shall be governed by and construed in accordance with
English law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Bank Transfer Date:
4. Bank's Participation:
Bank's Commitment Bank's Portion of the Loan
5. Amount Transferred Advances and Currencies
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
ADMINISTRATIVE DETAILS OF TRANSFEREE BANK
Facility Office:
Contact Name:
Account for payments in dollars:
Telex: [ ]
[Fax: [ ]]
Telephone: [ ]
PART B
FORM OF BORROWER TRANSFER CERTIFICATE
To: [Agent]
BORROWER TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "FACILITY AGREEMENT") dated 15 August 1999 whereby a
$3,000,000,000 revolving credit facility was made available to VNU N.V. and VNU
Ireland as original borrowers by a group of banks on whose behalf ABN AMRO Bank
N.V. acted as agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Transferor Borrower,
Advance, Effective Borrower Transfer Date and Transferee Borrower are defined in
the schedule hereto.
2. The Transferor Borrower (i) confirms that the Advance was made available to
it by the Banks and (ii) requests the Transferee Borrower to accept and procure
the transfer to the Transferee Borrower of the whole of the Advance by
counter-signing and delivering this Borrower Transfer Certificate to the Agent
at its address for the service of notices specified in the Facility Agreement.
3. The Transferee Borrower hereby requests the Agent to accept this Borrower
Transfer Certificate as being delivered to the Agent pursuant to and for the
purposes of Clause 26.11 (TRANSFERS OF ADVANCES BY BORROWERS) of the Facility
Agreement so as to take effect in accordance with the terms thereof on the
Effective Borrower Transfer Date.
4. The Transferee Borrower hereby undertakes with each of the other parties to
the Facility Agreement that it will perform in accordance with their terms all
those obligations which by the terms of the Facility Agreement will be assumed
by it after delivery of this Borrower Transfer Certificate to the Agent and
satisfaction of the conditions (if any) subject to which this Borrower Transfer
Certificate is expressed to take effect.
5. This Borrower Transfer Certificate and the rights, benefits and obligations
of the parties hereunder shall be governed by and construed in accordance with
English law.
THE SCHEDULE
1. Transferor Borrower:
2. Transferee Borrower:
3. Effective Borrower Transfer Date:
4. Advance and Currency:
[Transferor Borrower] [Transferee Borrower]
By: By:
Date: Date:
[DETAILS OF TRANSFEREE BORROWER
Address:
Contact Name:
Telex: [ ]
Fax: [ ]
Telephone: [ ] ]*
*Only required if Transferee Borrower is an Additional Borrower
THE THIRD SCHEDULE
CONDITION PRECEDENT DOCUMENTS
1. In relation to each of the Obligors:
(a) a copy, certified a true copy by a duly authorised officer of
such Obligor, of the constitutive documents of such Obligor;
(b) a certificate of a duly authorised managing director of the
Guarantor stating that the execution by it of this Agreement
and the performance by it of its obligations hereunder are
within its corporate powers, have been duly approved by all
necessary corporate action, are in its best corporate
interests and will not cause any limit or restriction on any
of its powers (whether imposed by law, decree, rule,
regulation, its constitutive documents, agreement or
otherwise), or on the rights or ability of its directors to
exercise such powers, to be exceeded or breached all subject
to the provisions of the WET OP DE ONDERNEMINGSRADEN regarding
the Facility and the issue by VNU N.V. of the guarantee
granted by it pursuant to this Agreement;
(c) either:
(i) a copy, certified a true copy, by a duly authorised
managing director of the Guarantor, of an
unconditional positive advice from the authorised
Works' Council (ONDERNEMINGSRAAD, "OR") with regard
to the contracting (AANTREKKEN) of a substantial loan
on behalf of the Guarantor pursuant to this Agreement
and the granting of a guarantee for the obligations
of each Obligor; or
(ii) if no such unconditional positive advice is obtained
either:
(1) a certificate of a duly authorised managing
director of the Guarantor, stating that the
one month period mentioned in article 26
para. 2 of the Works' Council Act (WET OP DE
ONDERNEMINGSRADEN, "WOR") has lapsed without
the commencement by the OR of legal
proceedings in accordance with article 26 of
the WOR or any other legal proceedings
(whether by summary proceedings or
otherwise) against the Guarantor in
connection with the transactions
contemplated by this Agreement; or
(2) a copy, certified a true copy by a duly
authorised managing director of the
Guarantor, of a decision of the OR to
abstain from appeal or to refrain from
objecting against the decision of the
Guarantor with regard to the transactions
contemplated by this Agreement; or
(3) the Condition to the Offer set out in
paragraph (iv)(B) of Exhibit A shall have
been met on the basis that in the
Guarantor's opinion the conditions specified
in the conditional positive advice referred
to therein would not result in the material
detriment or restrictions referred to
therein, the Guarantor shall have notified
the Agent of such conditions, shall have
consulted with the Agent in respect thereof,
provided the Agent with reasonable
information (if available) supporting the
Guarantor's opinion mentioned herein and
allowed the Agent a reasonable period of
time in the relevant circumstances to
discuss such opinion with, and make
representations in respect thereof to, the
Guarantor; or
(4) if legal proceedings referred to in
paragraph (1) have been commenced by the OR,
either:
(a) a decision by the competent court
(not subject to appeal) has been
given in respect of such
proceedings which has the effect
that the Guarantor is entitled to
contract (ANTREKKEN) for a
substantial loan pursuant to this
Agreement and to grant a guarantee
for the obligatios of each Obligor
notwithstanding any legal
proceedings which either have or
may be brought by the OR; or
(b) all claims of the OR pursuant to
such proceedings have been
dismissed and no further appeal may
be commenced by the OR; or
(c) all such proceedings referred to in
paragraph (1) above which may have
been commenced by the OR have been
terminated or withdrawn by the OR;
(d) in relation to VNU Ireland, a copy, certified as true by a
duly authorised officer of VNU Ireland, of a board resolution
of VNU Ireland approving the execution of this Agreement and
the exercise of its rights and performance of its obligations
hereunder; and
(e) a certificate of a duly authorised officer of such Obligor
setting out the names and signatures of the persons authorised
to sign, on behalf of such Obligor this Agreement and any
documents to be delivered by such Obligor pursuant hereto.
2. An opinion of the Guarantor's Counsel in substantially the form set out in
the Sixth Schedule (OPINION OF THE GUARANTOR'S COUNSEL).
3. An opinion of the Banks' Netherlands and Irish Counsel in substantially the
forms set out in the Seventh Schedule (OPINION OF THE BANKS' NETHERLANDS AND
IRISH COUNSEL).
4. An opinion of the Banks' English Counsel in substantially the form set out in
the Eighth Schedule (OPINION OF THE BANKS' ENGLISH COUNSEL).
5. A copy, certified a true copy by a duly authorised officer of the Guarantor,
of the Original Financial Statements of the Guarantor and of the most recent
accounts of VNU Ireland (audited, if available).
6. Evidence that Law Debenture Corporate Services Limited has agreed to act as
the agent of the Obligors for the service of process in England.
7. Executed copies, certified by an authorised signatory of the Guarantor as
true, complete and up-to-date, of the Tender Offer Documents, the Merger
Document, the Confidentiality Agreement and the Escrow Account Agreement.
8. Evidence that the up-front fees required to be paid by the Guarantor prior to
first drawdown pursuant to the arrangement fee letter referred to herein have
been (or are to be) paid in accordance therewith.
9. Certificate of Incorporation, certified by the secretary of State of Delaware
and by-laws of Purchaser and Target, certified by the secretary of such
corporations.
10. Evidence of the existence and good standing of Purchaser and Target from the
State of Delaware.
11. A certificate, signed by an authorised signatory of the Guarantor,
confirming that Shares satisfying the Minimum Condition have been tendered in
accordance with the Offer.
THE FOURTH SCHEDULE
NOTICE OF DRAWDOWN
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs,
1. We refer to the agreement (as from time to time amended, varied, novated or
supplemented, the "FACILITY ") dated 15 August 1999 and made between VNU Ireland
and VNU N.V. as borrowers, VNU N.V. as guarantor, ABN AMRO Bank N.V. and Xxxxxxx
Xxxxx International as arrangers, ABN AMRO Bank N.V. as agent and the financial
institutions named therein as banks. Terms defined in the Facility Agreement
shall have the same meaning in this notice.
2. We hereby give you notice that, pursuant to the Facility Agreement and on
(date of proposed Advance], we wish to borrow an Advance having an Original
Dollar Amount of $[ ] upon the terms and subject to the conditions contained
therein. .
3. [We would like this Advance to be denominated in [currency] [and to have a
Term of [ ] months' duration].
4. We confirm that , at the date hereof, the representations set out in Clause
12 (REPRESENTATIONS) of the Facility Agreement to be repeated in accordance with
Clause 12.2 (REPETITION) of the Facility Agreement are true and no Event of
Default or Potential Event of Default has occurred and is continuing.
5. The Proceeds of this drawdown should be credited to [insert account details].
Yours faithfully
------------------------------
for and on behalf of
[Name of Borrower]
THE FIFTH SCHEDULE
FORM OF ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT is made on the [ ] day of [ ] 199[ ]
BETWEEN:
(1) VNU N.V. on behalf of itself and each of the other Obligors (the
"GUARANTOR")
(2) [Additional Borrower] (the "ADDITIONAL BORROWER"); and
(3) ABN AMRO BANK N.V. as agent on behalf of itself and each of the
Arranger and the Banks (the "AGENT").
WHEREAS:
(A) The Original Borrower, the Guarantor, ABN AMRO Bank N.V. and Xxxxxxx
Xxxxx International as Arrangers, ABN AMRO Bank N.V. as Agent and the
Banks referred to therein entered into a $ 3,000,000,000 Revolving
Credit Facility Agreement dated 15 August 1999 pursuant to which a
revolving credit facility was made available to the Borrowers referred
to therein (the "FACILITY AGREEMENT").
[(B)] [Specify any other Additional Borrower[s]] [has] [have] become [a
party] [parties] to the Facility Agreement as [a] Borrower[s] on
[specify date[s] of the relevant Accession Agreement[s]] pursuant to
Clause 3 of the Facility Agreement.]
[(B)/(C)] The Guarantor wishes to designate the Additional Borrower as an
Additional Borrower for the purposes of the Facility Agreement.
NOW IT IS HEREBY AGREED as follows:
1. Terms defined in the Facility Agreement shall, unless the context
otherwise requires, have the same meanings when used in this Agreement.
2. ADDITIONAL BORROWER
The Guarantor hereby designates the Additional Borrower as an
Additional Borrower for the purposes of the Facility Agreement and each
of the parties to this Agreement agrees that upon the satisfaction of
the conditions referred to in Clause 3.2 (ACCESSION OF ADDITIONAL
BORROWERS) of the Facility Agreement the Additional Borrower shall
become an Additional Borrower for the purposes of the Facility
Agreement and any reference to an "ADDITIONAL BORROWER", a "BORROWER"
or an "OBLIGOR" in the Facility Agreement shall thereupon be construed
accordingly.
3. CONDITIONS PRECEDENT
The condition precedent documents referred to in Clause 3.2 (ACCESSION
OF ADDITIONAL BORROWERS) of the Facility Agreement in relation to the
Additional Borrower are as follows:
(a) a copy, certified a true copy by a duly authorised officer of
the Additional Borrower, of its constitutive documents;
(b) a copy, certified a true copy by a duly authorised officer of
the Additional Borrower, of a board resolution or equivalent
authorisation of the Additional Borrower approving the
execution, delivery and performance of this Agreement and the
terms and conditions hereof, the exercise of its rights and the
performance of its obligations under the Facility Agreement and
authorising a named person or persons to sign this Agreement
and any documents to be delivered by it pursuant hereto or
pursuant to the Facility Agreement;
(c) a certificate of a duly authorised officer of the Additional
Borrower setting out the name and signature of the person or of
each of the persons referred to in (b) above;
(d) a copy, certified a true copy by a duly authorised officer of
the Additional Borrower, of each such law, decree, consent,
licence, approval, registration or declaration as is, in the
opinion of counsel to the Banks, necessary to render this
Agreement and the Additional Borrower's obligations under the
Facility Agreement legal, valid, binding and enforceable, to
make this Agreement and the Facility Agreement admissible in
evidence in the Additional Borrower's jurisdiction of
incorporation and to enable the Additional Borrower to perform
its obligations under the Facility Agreement; and
(e) an opinion of external counsel in the jurisdiction of
incorporation of the Additional Borrower and England.
4. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which when so executed being an original and all such counterparts
together constituting but one and the same instrument.
5. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
English law.
6. MISCELLANEOUS
The provisions of Clause 28 (REMEDIES AND WAIVERS, PARTIAL INVALIDITY)
and Clause 31.2 (ENGLISH COURTS) to 31.7 (WAIVER OF IMMUNITY) of the
Facility Agreement shall be deemed to be incorporated in this Agreement
MUTATIS MUTANDIS and as if references therein to an "OBLIGOR" were
references to the Additional Borrower.
IN WITNESS WHEREOF the hands of the duly authorised representatives of the
parties hereto the day and year first before written.
------------------------------------
VNU N.V.
--------------------------------------
[ADDITIONAL BORROWER]
---------------------------------------
ABN AMRO BANK N.V.
THE SIXTH SCHEDULE
OPINION OF THE GUARANTOR'S COUNSEL
THE SEVENTH SCHEDULE
OPINION OF THE BANKS' NETHERLANDS AND IRISH COUNSEL
THE EIGHTH SCHEDULE
OPINION OF THE BANKS' ENGLISH COUNSEL
THE NINTH SCHEDULE
FORM OF DISPOSALS CERTIFICATE
To : [Agent]
From : VNU N.V.
Dated : [ ]
Dear Sirs,
$3,000,000,000 REVOLVING CREDIT AGREEMENT DATED 15 AUGUST 1999 BETWEEN OURSELVES
AS GUARANTOR, THE BORROWERS REFERRED TO THEREIN, ABN AMRO BANK N.V. AND XXXXXXX
XXXXX INTERNATIONAL AS ARRANGERS, YOURSELVES AS AGENT AND CERTAIN FINANCIAL
INSTITUTIONS SPECIFIED THEREIN AS BANKS (THE "FACILITY AGREEMENT")
[This certificate is delivered to you pursuant to Clause 15.8 (a) of the
Facility Agreement together with our audited annual financial statements for our
financial year ended [ ]. During such financial year disposals (of the type
referred to in Clause 15.8 (a) of the Facility Agreement) have been made by the
VNU Group, details of which are set out below:
RELEVANT VNU UNDERTAKING/ DATE OF NET REVENUES CASH
GROUP MEMBER ASSET DISPOSAL PROCEEDS
]*
[This certificate is delivered to you pursuant to Clause 15.8 (b) of the
Facility Agreement. A disposal of the type referred to in Clause 15.8 (b) of the
Facility Agreement) has been made by [specify relevant VNU Group member],
details of which are as follows:
RELEVANT VNU UNDERTAKING/ DATE OF NET REVENUES CASH
GROUP MEMBER ASSET DISPOSAL PROCEEDS
]*
Words and expressions defined in this certificate have the meanings given to
them in the Facility Agreement.
[ ]
for and on behalf of
VNU N.V.
* Delete as appropriate
VNU IRELAND
(as Borrower)
By: X.X. Power
Address: Xxxx Xxxxx
XXXX
Xxxxxx 0
Xxxxxxx
Tel: + 000 0 000 0000
Fax: + 000 0 000 0000
Att: Chief Financial Officer/Treasurer
VNU N.V.
(as Borrower and Guarantor)
By: X. xxx Xxxxxxxx W. van Neutegem
Address: Xxxxxxxxxxx 0-00
0000 XX Xxxxxxx
Xxx Xxxxxxxxxxx
Telephone: 00 00 000 0000
Facsimile: 31 23 546 3911
Attention: Chief Financial Officer/Treasurer
THE ARRANGERS
ABN AMRO BANK N.V.
By: A. H. den Held B. Flotman-van Zeventer
Address: Xxxxxxxxxxxxx 00-00
0000 XX Xxxxxxxxx Xxxxxxxx
Xxx Xxxxxxxxxxx
Telephone: 00 00 000 0000/3729
Facsimile: 31 20 628 7968
Attention: Xxxxxx xx Xxxxx/Xxx Xxxxxx
XXXXXXX XXXXX INTERNATIONAL
By: X. Xxxxxx
Address: Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: x00 000 000 0000
Fax: x00 000 000 0000
Attention: Xxxxxx Xxxxxx/Xxxxxxx Xxxxxxx
THE AGENT
ABN AMRO BANK N.V.
By: A. H. den Held B. Flotman-van Zeventer
Address: Xxxxxx Xxxxxxxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telephone: 00 00 000 0000
Facsimile: 31 20 628 7716
Attention: Xxx Xxxxxxxx PAC HQ 4131
THE BANKS
ABN AMRO BANK N.V.
By: A. H. den Held B. Flotman-van Zeventer
CREDIT MATTERS:
Address: Global & Institutional Clients
X.X. Xxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telephone: 00 00 000 0000
Facsimile: 31 20 628 7755
Attention: Xxxxx X. den Held
OPERATIONAL MATTERS:
Address: FCS Account Management
X.X. Xxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telephone: 00 00 000 0000
Facsimile: 31 20 628 1286
Attention: R. Xxxxxxxxxx
XXXXXXX XXXXX CAPITAL CORPORATION
By: Xxxxxxx X. Xxxxx
Address: World Financial Center
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx , Xxx Xxxx
00000-0000
Telephone: x0 000 000 0000
Fax: x0 000 000 0000
Attention: Xxxxx Xxxxxx
