<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
(AMENDMENT NO. 2)
TENDER OFFER STATEMENT PURSUANT TO
SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D*
(AMENDMENT NO. 2)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
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CCH INCORPORATED
(NAME OF SUBJECT COMPANY)
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WK ACQUISITION SUB, INC.
WOLTERS KLUWER NV
(BIDDERS)
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CLASS A COMMON STOCK, PAR VALUE $1.00 PER SHARE
CLASS B COMMON STOCK, PAR VALUE $1.00 PER SHARE
(TITLE OF CLASS OF SECURITIES)
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124883 10 9 (CLASS A COMMON STOCK)
124883 20 8 (CLASS B COMMON STOCK)
(CUSIP NUMBER OF CLASS OF SECURITIES)
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MR. PETER W. VAN WEL
WOLTERS KLUWER NV
STADHOUDERSKADE 1
1054 ES AMSTERDAM
THE NETHERLANDS
011-31-20-607-0400
with a copy to:
ARNOLD J. SCHAAB, ESQ.
PRYOR, CASHMAN, SHERMAN & FLYNN
410 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 421-4100
(NAMES, ADDRESSES AND TELEPHONE NUMBERS OF PERSONS AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
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* This Amendment No. 2 to Schedule 14D-1 also constitutes Amendment No. 2 to
the Statement on Schedule 13D of WK Acquisition Sub, Inc. and Wolters Kluwer
nv filed with respect to the shares of Class A Common Stock, par value $1.00
per share, and Class B Common Stock, par value $1.00 per share, of CCH
Incorporated beneficially owned by WK Acquisition Sub, Inc. and Wolters Kluwer
nv.
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Page 1 of pages.
Exhibit Index is located on page 4.
<PAGE>
This Amendment No. 2 amends and supplements the Tender Offer Statement on
Schedule 14D-1 which relates to the offer by WK Acquisition Sub, Inc., a
Delaware corporation (the "Purchaser") and an indirect wholly owned subsidiary
of Wolters Kluwer nv, a corporation organized under the laws of The
Netherlands ("Parent"), to purchase all outstanding shares of Class A Common
Stock, par value $1.00 per share, and Class B Common Stock, par value $1.00
per share (collectively, the "Shares"), of CCH Incorporated, a Delaware
corporation (the "Company"), upon the terms and subject to the conditions set
forth in the Offer to Purchase dated December 1, 1995 (the "Offer to
Purchase"), as amended and supplemented by the Supplement to Offer to Purchase
dated December 22, 1995 (the "Supplement"), and in the related Letter of
Transmittal for Class A Common Stock and Letter of Transmittal for Class B
Common Stock (which, as amended from time to time, together constitute the
"Offer"). This Amendment No. 2 also constitutes Amendment No. 2 to the
Statement on Schedule 13D of the Purchaser and Parent with respect to the
Shares beneficially owned by the Purchaser and Parent.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Items 4(a)-(b) are hereby amended and supplemented by adding thereto the
following:
On December 29, 1995, Parent entered into a definitive agreement
providing for the Bridge Facility substantially on the terms set forth in
the Supplement, except that the definitive agreement provides that drawings
may be made in a minimum amount of $75 million and in integral multiples of
$25 million. A copy of such definitive agreement is filed as an exhibit
hereto and is incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS
Item 11 is hereby amended and supplemented by adding thereto the following:
(b)(1) - Revolving Credit Facility Agreement dated as of December 29,
1995 among Parent and the banks party thereto.
2
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SIGNATURES
After due inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: January 3, 1996
Wolters Kluwer nv
/s/ Peter W. van Wel
By: _________________________________
Peter W. van Wel
Member, Executive Board
WK Acquisition Sub, Inc.
/s/ Bruce C. Lenz
By: _________________________________
Bruce C. Lenz
Executive Vice President
3
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT NAME PAGE NO.
------- ------------ --------
<C> <S> <C>
(b)(1) Revolving Credit Facility Agreement dated as of December
29, 1995 among Parent and the banks party thereto.........
</TABLE>
4
<PAGE>
EXHIBIT (b)(1)
US$ 1,900,000,000
REVOLVING CREDIT FACILITY AGREEMENT
BETWEEN
WOLTERS KLUWER N.V.
AS BORROWER
AND
__________________
____________________________________________________
__________________________
_____________
_________________________
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CONTENTS
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CLAUSE NO. PAGE NO.
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Part 1
INTERPRETATION
1. Interpretation.................................................. 5
Part 2
THE FACILITY
2. The Facility.................................................... 11
3. Purpose......................................................... 11
4. Conditions Precedent............................................ 11
5. Nature of Bank's Obligations.................................... 11
Part 3
UTILISATION OF THE FACILITY
6. Utilisation of the Facility..................................... 12
Part 4
INTEREST
7. Interest........................................................ 14
8. Market Disruption and Alternative Interest Rates................ 14
Part 5
REPAYMENT AND CANCELLATION
9. Repayment....................................................... 15
10. Cancellation.................................................... 16
Part 6
CHANGES IN CIRCUMSTANCES
11. Taxes........................................................... 16
12. Tax Receipts.................................................... 17
13. Increased Costs................................................. 18
14. Mitigation of Increased Costs or Adverse Circumstances.......... 19
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Part 7
REPRESENTATIONS, COVENANTS AND DEMAND REPAYMENT
15. Representations................................................. 19
16. Financial Information........................................... 22
17. Covenants....................................................... 22
18. Demand Repayment................................................ 24
Part 8
DEFAULT INTEREST AND INDEMNITY
19. Default Interest and Indemnity................................. 26
Part 9
PAYMENTS
20. Currency of Account and Payment................................. 28
21. Payments........................................................ 29
22. Set-Off......................................................... 29
Part 10
COSTS AND EXPENSES
23. Costs and Expenses.............................................. 29
Part 11
ASSIGNMENTS AND TRANSFERS
24. Benefit of Agreement............................................ 30
25. Assignments and Transfers....................................... 30
26. Disclosure of Information....................................... 30
Part 12
MISCELLANEOUS
27. The Paying Agent and the Bank................................... 31
28. Calculation and Evidence of Debt................................ 32
29. Remedies and Waivers............................................ 32
30. Partial Invalidity.............................................. 33
31. Notices......................................................... 33
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Part 13
LAW AND JURISDICTION
32. Law............................................................. 34
33. Jurisdiction.................................................... 34
THE FIRST SCHEDULE The Financial Institutions
THE SECOND SCHEDULE Condition Precedent Documents
THE THIRD SCHEDULE Notice of Drawdown
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THIS AGREEMENT is made the 29th day of December, 1995
BETWEEN
(1) WOLTERS KLUWER N.V., a public company established under the laws of the
Netherlands, having its registered office at Stadhouderskade 1, Amsterdam,
The Netherlands;
AND
(2) ___________________
____________________________________________________
__________________________
_________________
_________________________
NOW IT IS HEREBY AGREED as follows:
PART 1
INTERPRETATION
1. INTERPRETATION
1.01 In this Agreement:
"Adjusted Available Facility" means at any time, in respect of any Advance, the
Available Facility at such time adjusted so as to take into account:
(i) the amount of any Advances which are the subject of a Notice of
Drawdown or which are due to be repaid on or before the proposed date for the
making of such Advance; and
(ii) the amount by which the Total Commitments will be reduced during
the Term of the Advance to be made on such proposed date for the making of such
Advance pursuant to a cancellation of which notice has been given pursuant to
Clause 10;
"Advance" means, save as otherwise provided herein, an advance (as from time to
time reduced by repayment) made or to be made by the Bank hereunder;
"Applicable Margin" means 0.1 per cent per annum;
"Applicable Treaty" means, in relation to a party to this Agreement, a tax
treaty relating to the relief from double taxation on income and capital
permitting such party to make
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payments hereunder without deduction or withholding of any tax;
"Available Commitment" in relation to the Bank at any time means, save as
otherwise provided herein, its Commitment at such time less the aggregate of its
portions of the amounts of the Advances which are then outstanding;
"Available Facility" means the aggregate from time to time of the Available
Commitment;
"Bank" means each Financial Institution or, as the context may require, some or
all of the Financial Institutions;
"Borrower" means Wolters Kluwer N.V. in its capacity as the borrower;
"Borrowings" shall mean (without duplication) all liabilities for money borrowed
or for the deferred purchase price of property (including without limitation any
obligation under a conditional sale or other title retention agreement, any
obligation issued or assumed as full or partial payment for property whether or
not secured by a purchase money mortgage or any obligation under notes payable
or drafts accepted representing extensions of credit but not in any event
including trade accounts payable or any obligations incurred in favour of the
seller of any business that are wholly contingent upon future business
performance), Capitalised Lease Obligations or indemnities of Borrowings of
others (excluding in all cases, Borrowings from other members of the Group or
Guarantees or indemnities in respect of Borrowings of other members of the
Group);
"Capitalised Lease Obligation" shall mean any rental obligation which, under
generally accepted accounting principles, would be required to be capitalised on
the books of the Borrower or any of its subsidiaries, taken at the amount
thereof accounted for as Indebtedness (net of interest expense) in accordance
with such principles;
"Commitment" means, save as otherwise provided herein, in relation to each
Financial Institution, the amount of the Commitment set forth on the page of the
First Schedule relating to such Financial Institution, in each case as may be
reduced from time to time in accordance with the terms hereof;
"Existing Requirement" means in relation to the Bank:
(i) any request to the Bank made prior to the date hereof;
(ii) any requirement imposed on the Bank prior to the date hereof; or
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(iii) any requirement to be imposed on the Bank on or after the date
hereof the details of which have been published in such manner as to enable the
Bank to determine prior to the date hereof how such requirement would apply to
the Bank's obligations under this Agreement,
each such request or requirement being one published by a relevant central bank,
fiscal, monetary or other authority pursuant to the implementation of the
proposals contained in the July 1988 Report of the Basle Committee on Banking
Regulations and Supervisory Practices (Cooke Report);
"Facility" means the revolving credit facility in the maximum amount as is
identified in the First Schedule granted to the Borrower in this Agreement;
"Facility Office" means in relation to each Financial Institution: such office
of such Financial Institution as is identified in the First Schedule as its main
office or, such other office as such Financial Institution may from time to time
select in accordance with the provisions of this Agreement;
"Final Maturity Date" means December 27, 1996;
"Financial Institution" means each of the financial institutions listed in the
First Schedule to this Agreement;
"Group" means the Borrower and its subsidiaries for the time being;
"Guarantee", shall mean, with respect to any person, any direct or indirect
liability, contingent or otherwise, of such person with respect to any
Indebtedness, lease, dividend or other obligation of another, including, without
limitation, any such obligation directly or indirectly guaranteed, endorsed
(otherwise than for collection or deposit in the ordinary course of business) or
discounted or sold with recourse by such person, or in respect of which such
person is otherwise directly or indirectly liable, including, without
limitation, any such obligation in effect guaranteed by such persons through any
agreement (contingent or otherwise) to purchase, repurchase or otherwise acquire
such obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), or to maintain the solvency or
any balance sheet or other financial condition of the person liable in respect
of such obligation, or to make payment for any products, materials or supplies
or for any transportation or services regardless of the non-delivery or non-
furnishing thereof, in any such case if the effect of such agreement is to
provide a legally binding commitment by such person that such
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obligation will be paid or discharged, or that any agreements relating thereto
will be complied with, or that the holders of such obligation will be protected
against loss in respect thereof. The amount of any Guarantee shall be equal to
the outstanding principal amount of the obligation guaranteed or such lesser
amount to which the maximum exposure of the guarantor shall have been
specifically limited;
"Indebtedness" shall mean, with respect to the Borrower, without duplication (i)
all items (other than capital stock, capital surplus, share premium account,
capital redemption reserve fund, capital or revenue reserves of any nature,
retained earnings and deferred credits) which in accordance with generally
accepted accounting principles would be included in determing total liabilities
as shown on the liability side of a balance sheet of the Borrower as of the date
on which indebtedness is to be determined (including without limitation any
Capitalised Lease Obligation but not including any liabilities or accruals in
respect of trade creditors or other similar obligations incurred in the normal
course of business or non-repayable government grants); (ii) all indebtedness
secured by any encumbrance on any property or asset owned or held by the
Borrower subject thereto, whether or not the indebtedness secured thereby shall
have been assumed, and (iii) all indebtedness of others with respect to which
the Borrower has become liable by way of a Guarantee;
"Material Adverse Effect" means any event or circumstance which has a material
adverse effect on either:
(i) the assets, business or financial condition of the Group; or
(ii) the ability of the Borrower to perform its obligations under
this Agreement;
"Netherlands" means The Netherlands and, where the context so permits, any
political or taxing authority or subdivision thereof or therein;
"Notice of Drawdown" means a notice substantially in the form set out in the
Third Schedule;
"Original Financial Statements" means the audited consolidated financial
statements of the Borrower for its financial year ended 31 December 1994;
"Paying Agent" means __________________ in its capacity as paying agent;
"Quotation Date" in relation to any period for which an interest rate is to be
determined hereunder means the date on which quotations would ordinarily be
given by prime banks in the London
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Interbank Market for deposits in dollars 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 the principal London offices of the Bank or such other
bank or banks as may from time to time be agreed between the Borrower and the
Bank;
"Reference Rate" means the rate at which dollar deposits are being offered to
prime banks in the London Interbank Market for the period for which such rate is
to be determined at 11:00 a.m. on the Quotation Date therefor, as published on
page 3750 of Telerate by the British Bankers Association, or, if such rate is
not published on Telerate, the arithmetic mean (rounded upwards, if not already
such a multiple, to the nearest whole multiple of one-sixteenth of one per cent)
of the rates at which each of the Reference Banks was offering dollar deposits
to prime banks in the London Interbank Market for the period for which such rate
is to be determined at 11:00 a.m. on the Quotation Date therefor.
"Repayment Date" in relation to any Advance means the last day of the Term
thereof;
"Term" in relation to any Advance means 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 Bank's
Commitments.
1.02 Any reference in this Agreement to:
the "Bank" shall be construed so as to include its respective successors, and
assigns in accordance with their respective interests;
a "business day" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks are generally open for business in London,
New York and Amsterdam;
a "clause" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
a "consolidated subsidiary" of the Borrower shall at any date be construed as a
subsidiary the accounts of which are (or, if audited consolidated statements of
the Borrower were then to be made up, would be) consolidated with those of the
Borrower in its consolidated financial statements as of such date;
an "encumbrance" shall be construed as a reference to any
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mortgage, charge, pledge, lien, security interest or other encumbrance howsoever
arising (but, for the avoidance of doubt, shall not include any title retention
or other similar right arising in the ordinary course of business in respect of
the sale of property or assets of any nature to any member of the Group)
securing any obligation of any person;
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 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 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 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 reference to
"months" shall be construed accordingly);
a "Part" shall, subject to any contrary indication, be construed as a reference
to a part hereof;
a "person" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state of any association or
partnership (whether or not having separate legal personality) of two or more of
the foregoing;
a "Schedule" shall, subject to any contrary indication, be construed as a
reference to a schedule hereto;
a "subsidiary" means with respect to the Borrower, any company or corporation
that is a subsidiary thereof pursuant to the definition in art. 24a Book 2 of
the Dutch Civil Code;
"tax" shall be construed so as to include any tax, levy, impost, duty or other
charge of a similar nature (including, without limitation, any penalty or
interest payable in connection with any failure to pay or any delay in paying
any of the same); and
the "winding-up", "dissolution" or "administration" of a company shall be
construed so as to include any equivalent or analogous proceedings under the law
of the jurisdiction in which such company is incorporated or any jurisdiction in
which such company carries on business.
1.03 "$" and "dollars" denote lawful currency of the United States of
America.
1.04 Save where the contrary is indicated, any reference in this Agreement
to:
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(i) this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be such other
agreement or document as the same may have been, or may from time to time be,
amended, varied, novated or supplemented;
(ii) 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; and
(iii) a time of day shall be construed as a
reference to London time.
1.05 Clause, Part and Schedule headings are for ease of reference only.
PART 2
THE FACILITY
2. THE FACILITY
The Bank grants to the Borrower, upon the terms and subject to the conditions
hereof, a revolving credit facility in an aggregate amount of $1,900,000,000 (in
words: one billion nine hundred million dollars).
3. PURPOSE
3.01 The Facility is particularly intended for the bridge financing of the
acquisition of CCH Inc.
3.02 Without prejudice to the obligations of the Borrower under Clause 3.01,
the Bank shall not be obliged to concern itself with the application of amounts
raised by the Borrower hereunder.
4. CONDITIONS PRECEDENT
Save as the Bank may otherwise agree, the first Notice of Drawdown may not be
delivered hereunder by the Borrower unless the Paying Agent has confirmed to the
Borrower and to the Bank that it has received all of the documents listed in the
Second Schedule, in form and substance, reasonably satisfactory to the Paying
Agent.
5. NATURE OF BANK'S OBLIGATIONS
5.01 The Obligations of the Bank hereunder are several.
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5.02 The failure by the Bank to perform its obligations hereunder shall not
affect the obligations of the Borrower towards any other party hereto nor shall
any such party be liable for the failure by a Bank to perform its obligations
hereunder.
5.03 In the event of any failure on the part of the Bank to make or continue
to make available its portion of any Advance hereunder, the Paying Agent (but
without any liability on its part to assume the obligations of such Bank
hereunder) will use its best endeavors, in conjunction with the Borrower, for a
period not exceeding 30 days from the date of any such failure to find another
bank or financial institution to assume the obligations of such Bank hereunder.
PART 3
UTILISATION OF THE FACILITY
6. UTILISATION OF THE FACILITY
6.01 Save as otherwise provided herein, the Borrower may from time to time
request the making of Advances under the Facility by the delivery to the Paying
Agent, not more than six nor less than three business days before the proposed
date for the making of such Advance, of a duly completed Notice of Drawdown
therefor, provided that the first request may be made two days in advance prior
to 09:30 hours Amsterdam time. Subject as herein provided, each Advance drawn
hereunder shall be denominated in dollars.
6.02 Each Notice of Drawdown delivered to the Paying Agent pursuant to Clause
6.01 shall be irrevocable and shall specify:
(a) the proposed date for the making of such Advance, which shall be a
business day falling one month or more before the Final Maturity Date;
(b) the amount of the Advance requested, which shall be a minimum
amount of $75,000,000, and which shall not exceed the Adjusted Available
Facility;
(c) An Advance shall be made in integral multiples of $25,000,000; and
(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.
6.03 If the Borrower requests an Advance in accordance with the preceding
provisions of this Clause 6 and, on the proposed date for the making of such
Advance:
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(a) the amount of such Advance does not exceed the Adjusted Available
Facility;
(b) not more than three Advances (including such Advance) will be
drawn on each date;
(c) the total number of Advances outstanding (including such Advance
when made) does not exceed five; and
(d) no event has occurred which is or may become (with the passage of
time, the giving of notice, the making of any determination hereunder or any
combination thereof) one of those events mentioned in Clause 18, or the Bank
agrees (notwithstanding that such event has occurred) to make such Advance,
then, save as otherwise provided herein, such Advance will be made in accordance
with the provisions hereof.
6.04 Upon receipt of a Notice of Drawdown, the Paying Agent shall give to
each Bank prompt notice thereof by telephone (confirmed immediately by telefax
or telex), telefax, or telex. Each Bank through its Facility Office shall on the
date of such Advance, make available in an account of the Paying Agent, with
__________________ New York, 574-070002941 Chips 958, in same day funds, such
Bank's ratable portion of such Advance. After the Paying Agent's receipt of
such funds, the Paying such Advance. After the Paying Agent's receipt of such
funds, the Paying Agent will make such funds available to the Borrower in same
day funds at the Borrower's account with __________________ New York Branch, 500
Park Avenue, New York, NY 10022 account number 45 60 57 79 01 41.
6.05 Unless the Paying Agent shall have received notice from a Bank prior to
the date of any Advance that such Bank will not make available such Bank's
ratable portion of such Advance, the Paying Agent may assume that such Bank has
made such portion available to the Paying Agent on the date of such Advance in
accordance with clause 6.03 and the Paying Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent such Bank shall not have so made such ratable portion
available to the Paying Agent, such Bank and the Borrower severally agree to
repay to the Paying Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Paying Agent at (i)
in the case of the Borrower, the interest rate applicable to the relevant
Advance and (ii) in the case of such Bank, the rate per annum at which call
deposits in dollars are offered by the principal London office of the Paying
Agent to
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prime banks in the London Interbank Market for such day. If such Bank shall
repay to the Paying Agent such corresponding amount, such amount so repaid shall
constitute such Bank's part of the Advance for the purposes of this Agreement.
PART 4
INTEREST
7. INTEREST
7.01 On the Repayment Date relating to each Advance the Borrower shall pay
accrued interest on that Advance.
7.02 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 the Reference Rate.
8. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
8.01 If, in relation to any Advance the Paying Agent determines that at 11:00
a.m. on the Quotation Date for the Term in respect of such Advance none or only
one of the Reference Banks was offering to prime banks in the London Interbank
Market deposits in dollars for the proposed duration of such Term, then,
notwithstanding the provisions of Clause 7:
(a) the relevant Term shall be one month, and
(b) the rate of interest applicable to such Advance from time to time
during its Term shall be the rate per annum which is the sum of the Applicable
Margin and the rate per annum determined by the Paying Agent to be the
arithmetic mean (rounded upwards, if not already such a multiple, to the nearest
whole multiple of one-sixteenth of one percent) of the rates notified by each
Bank to the Paying Agent to be those which express as a percentage rate per
annum the cost to each Bank of funding from whatever sources it may reasonably
select of such Advance during such Term.
8.02 If (a) the event mentioned in Clause 8.01 occurs or (b) by reason of
circumstances affecting the London Interbank Market during any period of three
consecutive business days none of the Reference Banks offers deposits in dollars
to prime banks in the London Interbank Market, then:
(i) the Paying Agent shall notify the Borrower of such fact;
(ii) if the Borrower so requires, within five days of such
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notification the Paying Agent, on behalf of the Bank, and the Borrower shall
enter into negotiations with a view to agreeing a substitute basis for
determining the rate of interest which may be applicable to Advances in the
future and any such substitute basis that is agreed shall take effect in
accordance with its terms and be binding on each party hereto.
PART 5
REPAYMENT AND CANCELLATION
9. REPAYMENT
9.01 The Borrower shall repay each Advance made to it in full on the
Repayment Date relating thereto to the Paying Agent in its account referred to
in Clause 6.04 in same day funds.
9.02 The Borrower shall not repay all or any part of any Advance outstanding
hereunder except at the times and in the manner expressly provided herein but,
subject to the terms and conditions hereof, shall be entitled to reborrow any
amount repaid.
9.03 Upon receipt of a repayment by the Borrower pursuant to Clause 9.01, the
Paying Agent will thereafter cause to be distributed like funds relating to the
payment of principal or interest ratably (other than amounts payable pursuant to
Clause 12 or Clause 13) to the Banks for the account of their respective
Facility Offices in same day funds.
9.04 Without prejudice to paragraph 9.01 and 9.02, the Borrower shall repay
all Advances on Final Maturity Date. Any refinancing will be fully applied to
repay any Advances.
9.05 If the Borrower has repaid all Advances, the Facility will be terminated
automatically. If the Borrower has repaid a portion of the Advances, the
Available Facility will be decreased with the same amount as the Advances which
are repaid, provided that the Borrower is entitled to reborrow the amount of the
Advances that are repaid if the Advances were repaid as a result of temporary
increased liquidity of the Borrower resulting from the ordinary course of
business.
9.06 Unless the Paying Agent shall have received notice from the Borrower
prior to the Repayment Date of any Advance that the Borrower will not make such
payment in full, the Paying Agent may assume that the Borrower has made such
payment in full and the Paying Agent may, in reliance upon such assumption,
cause to be distributed to each Bank on such date an amount equal to the amount
then due to such Bank. If and to the extent the Borrower
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shall not have so made such payment in full to the Paying Agent, each Bank shall
repay to the Paying Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Paying Agent at the rate per annum at which call deposits in dollars are offered
by the principal London office of the Paying Agent to prime banks in the London
Interbank Market for such day.
10. CANCELLATION
10.01 The Borrower may, by giving the Paying Agent not less than fifteen
days' prior notice to that effect, cancel the whole or any part (being a minimum
amount of $50,000,000) of the Total Commitments.
10.02 The Total Commitments shall be cancelled in accordance with this clause
in integral multiples of $10,000,000.
10.03 Any notice of cancellation given by the Borrower pursuant to Clause
10.01 shall be irrevocable and shall specify the date upon which such
cancellation is to be made and the amount of such cancellation.
10.04 If the Bank claims indemnification form the Borrower under Clause
11.02, Clause 13.01 or Clause 19.05 or if the Borrower shall be required to pay
any increased amount pursuant to Clause 11.01, the Borrower may, within thirty
days thereafter and by not less than fifteen days' prior notice to the Paying
Agent (which notice shall be irrevocable), (i) cancel the Commitment whereupon
the Bank shall cease to be obliged to make any further Advances and its
Commitment shall be reduced to zero; and (ii) repay any Advance of the Bank.
PART 6
CHANGE IN CIRCUMSTANCES
11. TAXES
11.01 All payments to be made by the Borrower to any person hereunder shall
be made free and clear of and without deduction for or on account of tax unless
the Borrower is required to make such a payment subject to the deduction or
withholding of tax, in which case the sum payable by the Borrower 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 such deduction or
withholding, such person receives and retains (free from any liability in
respect of any such deduction or withholding) a net sum equal to the sum
<PAGE>
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which it would have received and so retained had no such deduction or
withholding been made or required to be made provided that in the absence of any
change after the date hereof in applicable law, treaty, regulation or any
official application or interpretation thereof or any change in the status of
the Borrower (including, without limitation, the withdrawal of any exemption
applicable thereto at the date hereof), the Borrower shall not be required to
pay any increased amount otherwise required by this Clause 11.01 on account of
any tax of, or imposed by, the jurisdiction of its incorporation in relation to
any payment to be made by it hereunder to any Bank or to the Paying Agent if
such payment could as at the date hereof be made for account of the Facility
Office of such person free and clear of any such deduction or withholding
whether by reason of such Facility Office being located in the jurisdiction of
incorporation of the Borrower or pursuant to Applicable Treaty or otherwise.
11.02 Without prejudice to the provisions of Clause 11.01, if any person or
the Paying Agent on its behalf is required to make any payment on account of tax
or otherwise (not being a tax imposed on or measured by net profits) on or in
relation to any sum received or receivable hereunder by the Bank on its behalf
(including, without limitation, any sum received or receivable under this Clause
11) or any liability in respect of any such payment is asserted, imposed, levied
or assessed against such person or the Paying Agent on its behalf, the Borrower
shall, upon demand of the Paying Agent, promptly indemnify such person against
such payment or liability (together with any interest, penalties and expenses
payable or incurred in connection therewith arising as a result of any late
payment by the Borrower of any amount demanded of it by the Paying Agent under
this Clause 11.02).
11.03 The Bank intending to make a claim pursuant to Clause 11.02 shall
notify the Borrower of the event by reason of which it is entitled to do so.
12. TAX RECEIPTS
12.01 If, at any time, the Borrower is (or but for the proviso to Clause
11.01 would be) required by law, regulation or practice 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), it shall promptly notify the Paying Agent.
12.02 If the Borrower makes any payment hereunder in respect of which it is
required to make any deduction or withholding, it shall pay the full amount to
be deducted or withheld to the relevant taxation or other authority within the
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time allowed for such payment under applicable law and shall deliver to the
Paying Agent within fourteen days after it has made such payment to the
applicable authority an original receipt issued by such authority evidencing the
payment to such authority of all amounts so required to be deducted or withheld
from such payment.
13. INCREASED COSTS
13.01 If, by reason of (a) the introduction of or any change in law or in its
interpretation or administration after the date hereof and/or (b) compliance
with any request or requirement other than any Existing Requirement of any
central bank or other fiscal, monetary or other authority which is made or
imposed or changed after the date hereof:
(i) the Bank incurs a cost as a result of the Bank having entered into
and/or performing its obligations under this Agreement and/or assuming or
maintaining its Available Commitment under this Agreement and/or making
available its portion of one or more Advances hereunder;
(ii) the Bank is unable to obtain the rate of return on its overall
capital which it would have been able to obtain but for the Bank having entered
into and/or performing its obligations and/or assuming or maintaining its
Available Commitment under this Agreement;
(iii) there is any increase in the cost to the Bank of funding or
maintaining all or any of the advances comprised in a class of advances formed
by or including the advances made or to be made by the Bank hereunder; or
(iv) the Bank becomes liable to make any payment on account of tax or
otherwise (not being a tax imposed on the net income of such Bank's Facility
Office by the jurisdiction in which it is incorporated or in which its Facility
Office is located) on or calculated by reference to the amount of advances made
or to be made by the Bank hereunder and/or by reference to any sum received or
receivable by the Bank hereunder,
then the Borrower shall from time to time on demand of the Bank, pay to the Bank
amounts sufficient to indemnify the Bank against, as the case may be, (1) such
cost, (2) such reduction of such rate of return (or such proportion of such
reduction as is, in the reasonable opinion of the Bank, attributable to its
obligations hereunder), (3) such increased cost (or such proportion of such
increased cost as is, in the reasonable opinion of the Bank, attributable to its
funding or maintaining
<PAGE>
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advances hereunder) or (4) such liability.
13.02 The Bank intending to make a claim pursuant to Clause 13.01 shall, as
soon as practicable after it becomes aware of the circumstances giving rise to
the claim, deliver to the Borrower a certificate to that effect specifying in
reasonable detail the event by reason of which it is entitled to do so and the
calculation of the amount claimed.
14. MITIGATION OF INCREASED COSTS OR ADVERSE CIRCUMSTANCES
If, in respect of the Bank, circumstances arise which would or could upon the
giving of notice result in:
(i) an increase in the amount of any payment to be made to it or for
its account pursuant to Clause 11.01, or
(ii) a claim for indemnification pursuant to Clause 11.02, 13.01 or
19.05
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrower under any of the Clauses referred to in (i) or (ii)
above, the Bank shall promptly upon becoming aware of the same notify the
Borrower thereof and, in consultation with the Paying Agent and the Borrower,
take such reasonable steps during a period not exceeding 30 days from the date
it shall have given notice to the Borrower as aforesaid as may be reasonably
open to it to mitigate the effects of such circumstances including a transfer of
its Facility Office to another jurisdiction, provided that the Bank shall be
under no obligation to make any such transfer if, in the bona fide opinion of
the Bank, such transfer would or might have an adverse effect upon its business,
operations or financial condition.
PART 7
REPRESENTATIONS, COVENANTS AND DEMAND REPAYMENT
15. REPRESENTATIONS
15.01 The Borrower represents at signing and at the date of a Notice of
Drawdown in accordance with article 31.02 (i) for the benefit of the Bank, that:
(i) it is duly incorporated and validly existing under the laws of its
place of incorporation and has full power to enter into this Agreement and to
exercise its rights and perform its obligations hereunder and all corporate or
other action required to authorize the execution of this Agreement and its
performance of its obligations hereunder has been duly taken;
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(ii) the drawdown in full of the Facility, the execution of this
Agreement and the performance by the Borrower of its obligations hereunder will
not cause any limit or restriction on the borrowing or other powers of the
Borrower (whether imposed by law, decree, rule, regulation, agreement or its
constitutive documents or otherwise howsoever) or on the right or ability of its
directors to exercise any such powers to be exceeded or breached;
(iii) it has not taken any corporate action nor have any other steps
been taken or legal proceedings been started or (to the best of its knowledge
and belief) threatened against it for its winding-up or dissolution or for the
appointment of an examiner, administrator, receiver, trustee or similar officer
of it or all or any material part of its assets and revenues;
(iv) no action or administrative proceeding of or before any court or
agency as to which there is a reasonable possibility of a Material Adverse
Effect has been started or to the best of its knowledge and belief threatened
against the Borrower;
(v) this Agreement constitutes legal and valid obligations binding on
such Borrower in accordance with the terms thereof;
(vi) the Original Financial Statements were prepared in accordance
with accounting principles generally accepted and consistently applied in the
Netherlands and give (in conjunction with the notes thereto) a true and fair
view of the financial condition of the Borrower and its consolidated
subsidiaries at the date as of which they were prepared and the results of the
operations of the Borrower and its consolidated subsidiaries during the
financial year then ended;
(vii) as of the date as of which the Original Financial Statements
were prepared there were no material liabilities (contingent or otherwise) which
were not disclosed thereby (or by the notes thereto) or reserved against therein
and no material unrealized or anticipated losses;
(viii) since the date as of which the Original Financial Statements
and the half yearly report 1995 as published on August 8, 1995, were prepared,
there has been no Material Adverse Effect;
(ix) the execution by the Borrower of this Agreement and its exercise
of its rights and performance of its
<PAGE>
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obligations hereunder will not result in the existence of nor oblige such
Borrower or any member of the Group to create any encumbrance over all or any of
their present or future revenues or assets;
(x) the execution by the Borrower of this Agreement and its exercise
of its rights and performance of its obligations hereunder neither constitute
nor will result in any breach of any law, statute, decree, rule or any
regulation in or of any jurisdiction to which the Borrower or any of its assets
or revenues is subject or of any order, judgment, injunction, decree,
resolution, determination or award of any court or any judicial, administrative
or government authority or organisation or of any jurisdiction having
applicability to the Borrower or any of its assets or revenues;
(xi) subject to Clause 11.01 under applicable laws in force at the
date hereof, no deduction or withholding will be required to be made from any
payment the Borrower may make hereunder;
(xii) under applicable laws in force at the date hereof, its
Indebtedness under this Agreement will rank at least pari passu in point of
priority with the claims of its other unsecured creditors, subject to any
statutory priorities or contractual subordination of its other creditors and
subject to limitations imposed by bankruptcy, reorganisation, insolvency or
other similar laws of general application relating to or affecting the
enforcement of creditors' rights;
(xiii) there are no consents, acts, conditions or things required
under applicable laws to be obtained, done, fulfilled or performed in order (a)
to enable it lawfully to enter into, exercise its rights under and perform the
obligations expressed to be assumed by it hereunder, (b) to ensure that the
obligations expressed to be assumed by it hereunder are legal, valid and binding
or (c) to make this Agreement admissible in evidence in the jurisdiction of its
place of incorporation;
(xiv) it is not necessary in order to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement in the
jurisdiction of its place of incorporation, that it be filed, recorded or
enrolled with any court or authority in any such jurisdiction or that any stamp,
registration or similar tax be paid on or in relation to this Agreement;
<PAGE>
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(xv) no event has occurred which constitutes, or with the passage of
time or the giving of notice or both would constitute, one of those events
mentioned in Clause 18;
(xvi) there is not in force any agreement evidencing Borrowings of the
Borrower containing, save as disclosed in writing to each Bank prior to the
execution of this Agreement, more comprehensive cross default provisions than
those contained in Clause 18.01(iv);
16. FINANCIAL INFORMATION
The Borrower shall:
(i) as soon as the same become available, but in any event within 180 days
after the and of each of its financial year, deliver to the Bank, its
audited consolidated financial statements for such financial year; and
(ii) 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 year, deliver to the
Bank its unaudited consolidated financial statements for such period.
17. COVENANTS
17.01 The Borrower shall:
(i) obtain, comply with the terms of and do all that is necessary to
maintain in full force and effect all authorizations, approvals, licenses and
consents which may hereafter be required in or by any applicable laws and
regulations to enable it lawfully to enter into and perform its obligations
under this Agreement or to ensure the legality, validity, enforceability or
admissibility in evidence in the jurisdiction of its incorporation of this
Agreement;
(ii) ensure that its Indebtedness hereunder will rank at least pari
passu in point of priority with the claims of its other unsecured creditors,
subject to any statutory priorities or contractual subordination of its other
creditors and subject to limitations imposed by bankruptcy, reorganisation,
insolvency or other similar laws of general application relating to or affecting
the enforcement of creditors' rights;
(iii) promptly inform each Bank of the occurrence of any event which
is or may become (with the passage of time or the giving of notice or both) one
of those events mentioned in Clause 18;
<PAGE>
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(iv) ensure that it is and remains at all times duly incorporated and
validly existing under the laws of its place of incorporation and at all times
has full power to exercise its rights and perform its obligations hereunder and
all corporate or other action required to authorize the performance of its
obligations hereunder has been duly taken;
(v) ensure that this Agreement at all times constitutes legal and
valid obligations binding on the Borrower in accordance with the terms hereof;
(vi) not without consent of each Bank enter into liabilities in
addition to (i) this Agreement and (ii) any liabilities existing at the date
hereof, in excess of $200,000,000, except for the refinancing of this Facility.
(vii) not without consent of all Banks dispose of material assets,
except if such disposal is on an arms' length basis, at a fair price or if such
disposal is in the ordinary course of business or if such disposal is within the
Group, provided that if such disposal exceeds 15% of the consolidated assets of
the Group, consent of all Banks shall be obtained.
17.02 The Borrower will not create or permit to subsist any encumbrance on the
whole or any part of its present or future assets except for the following:
(i) any encumbrance existing at the date of this Agreement; or
(ii) any encumbrance created with the prior written consent of each
Bank, such consent not to be unreasonably withheld; or
(iii) any encumbrance arising by operation of law and in the ordinary
course of the Borrower's operations; or
(iv) any encumbrance over assets acquired for the fair market value
after the date hereof which encumbrance was in existence prior to such
acquisition and was not created in contemplation of such acquisition and where
the principal amount secured thereby is not increased; or
(v) any encumbrance securing indebtedness in connection with the
financing of a specific sales transaction and created over the claim of the
Borrower against the relevant buyer; or
<PAGE>
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(vi) any retention of title provisions in a suppliers' conditions
of supply of goods; or
(vii) any encumbrance in relation to any pooling or netting
arrangements to which members of the Group are parties, any right of set-off or
netting granted by the Borrower to any bank in respect of any amounts credited
to the current accounts maintained at that bank by the Borrower against
overdraft or similar indebtedness of any Group member on current accounts
maintained at the bank by such Group members; or
(viii) any encumbrance provided in connection with swap and other
derivatives transactions entered into by the Borrower in the ordinary course of
its business to hedge its interest and currency risks with financial
institutions whose business includes dealing in derivatives where the provision
of such encumbrance is pursuant to the terms on which the transaction was
originally entered into; or
(ix) any encumbrance created over equivalent assets encumbered by any
of the encumbrances referred to in paragraphs (i) to (viii), where that
encumbrance is created in substitution for any of the encumbrances referred to
in paragraphs (i) to (viii).
18. DEMAND REPAYMENT
18.01 If:
(i) the Borrower fails to pay any sum due from it hereunder at the
time, in the currency and in the manner specified herein and, such failure
continues unremedied for a period of more than five business days after the date
on which such amount become due; or
(ii) any representation or statement made by the Borrower in this
Agreement or in any notice or other document, certificate or statement delivered
pursuant hereto or in connection herewith is or proves to have been incorrect or
misleading in, any material respect when made; or
(iii) The Borrower fails duly to perform or comply with any of the
other obligations expressed to be assumed by it in this Agreement and, such
failure is not remedied within thirty days after the Paying Agent, upon written
instruction thereto from the Financial Institutions, has given notice thereof to
the Borrower; or
(iv) (a) the Borrower defaults (whether as primary obligor
<PAGE>
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or as guarantor or other surety) in any payment of principal of, or premium (if
any) or interest on any Borrowings beyond any period of grace in respect
thereof, or
(b) the Borrower fails to perform or observe any other agreement, term
or condition contained in any agreement under which any such Borrowing is
created or in any instrument evidencing such Borrowing (or if any other event
thereunder or under any such agreement or instrument shall occur and be
continuing) and the effect of such failure or other event is to cause, or the
holder or holders of such agreements or instruments (or a trustee on behalf of
such holder or holders) has caused, such Borrowing to become due (or to be
repurchased by the guarantor or any other member of the Group) prior to any
stated maturity;
provided that the aggregate amount (without duplication) at any
relevant time of: -
(aa) in the case of clause (a) above, any such principal, premium or
interest so remaining unpaid; and
(bb) in the case of clause (b) above, the principal amount of any such
Borrowing having so become due prior to their stated maturity (or so required to
be repurchased) and which remain so due (or so required to be repurchased);
shall exceed thirty million US dollars (or its equivalent in any
other currency); or
(v) the Borrower becomes unable, admits in writing its inability or
fails generally to pay its debts as they fall due or commences negotiations with
any one or more of its creditors with a view to the general readjustment or
rescheduling of its Indebtedness or makes a general assignment for the benefit
of or a composition with its creditors; or
(vi) any resolution is passed or corporate action or other steps are
taken or legal proceedings started for the bankruptcy, reorganization, winding-
up, dissolution or readjustment of debts or for the making of an administration
order or for the appointment of an examiner, administrator, receiver,
administrative receiver, trustee or similar officer of the Borrower or of all or
any part, material in the context of the
<PAGE>
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Group taken as a whole, of its revenues or assets; or
(vii) the Borrower ceases or threatens to cease to carry on the
business it carries on at the date hereof or any part thereof, which is a
substantial part of the business of the Group, and such cessation or threatened
cessation does not arise by virtue of a transfer or proposed transfer of such
business to the Borrower or any wholly-owned subsidiary of the Borrower; or
(viii) twenty five per cent or more of the ordinary share capital of
the Borrower is acquired by one person or by one or more persons acting
together, whereas such acquisition has been qualified by the Borrower as
unfriendly;
then, and in any such case and at any time thereafter, each Bank may be written
notice to the Borrower and to the Paying Agent who will immediately inform the
other banks thereof:
(a) declare its portion of 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 Borrower hereunder); and/or
(b) declare that its Commitment shall be cancelled, whereupon the same shall be
cancelled and the Commitment of such Bank shall be reduced to zero.
PART 8
DEFAULT INTEREST AND INDEMNITY
19. DEFAULT INTEREST AND INDEMNITY
19.01 If any sum due and payable by the Borrower hereunder is not paid on the
due date therefor in accordance with the provisions of Clause 21 or if any sum
due and payable by the Borrower 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 the Borrower 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 period and the
duration of each of which shall be selected by the Bank.
19.02 During each such period relating thereto as is mentioned in Clause 19.01
an unpaid sum shall bear interest at the rate per annum which is the sum from
time to time of one per
<PAGE>
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cent, the Applicable Margin and the Reference Rate, provided that:
(i) if, for any such period, none of the Reference Banks was offering
dollar deposits for the required period, the rate of interest applicable to such
unpaid sum shall be determined in accordance with the foregoing provisions of
this Clause 19.02 but by reference to the weighted average of the rates, as
notified to the Borrower by the Bank, which expresses as a percentage rate per
annum the cost to such Bank of funding its portion of such unpaid sum for such
period from whatever sources it may reasonably select; and
(ii) if such unpaid sum is all or part of an Advance which became due
and payable on a day other than the Repayment Date thereof, the first such
period applicable thereto shall be of a duration equal to the unexpired portion
of the Term of such Advance 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.
19.03 Any interest which shall have accrued under Clause 19.02 in respect of an
unpaid sum shall be due and payable and shall be paid by the Borrower owing such
unpaid sum at the end of the period by reference to which it is calculated or on
such other dates as the Paying Agent may specify by written notice to the
Borrower.
19.04 If the Bank or the Paying Agent on its behalf receives or recovers all or
part of an Advance otherwise than on the Repayment Date thereof, the Borrower
shall pay to the Paying Agent on demand for account of the Bank an amount equal
to the amount (if any) by which (i) the additional interest which would have
been payable on the amount so received or recovered had it been received or
recovered on the Repayment Date thereof exceeds (ii) the amount which in the
opinion of the Bank would have been payable to the Bank on the Repayment Date
thereof in respect of a deposit 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 Repayment Date thereof.
19.05 The Borrower undertakes to indemnify the Bank:
(i) against any loss or expense, including legal fees, which the Bank
may sustain or incur as a consequence of any default by the Borrower in the
performance of any of the obligations expressed to be assumed by it in
<PAGE>
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this Agreement;
(ii) against any loss it may suffer as a result of its funding its
portion of an Advance requested by the Borrower hereunder but not made by reason
of the operation of any one or more of the provisions of this Agreement.
19.06 Any unpaid sum shall (for the purposes of this Clause 19 and of Clause
11.01) be treated as an advance and, accordingly, in this Clause 19 and in
Clause 11.01, "Advance" includes any unpaid sum and "Term", in relation to an
unpaid sum, includes each such period relating thereto as is mentioned in Clause
19.01.
PART 9
PAYMENTS
20 CURRENCY OF ACCOUNT AND PAYMENT
20.01 The dollar is the currency of account and payment for each and every sum
at any time due from the Borrower hereunder provided that:
(i) each repayment of an Advance or a part thereof shall be made in
dollars;
(ii) each payment of interest shall be made in dollars;
(iii) each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred; and
(iv) any amount expressed to be payable in a currency other than
dollars shall be paid in that other currency.
20.02 If any sum due from the Borrower 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 (i) making or filing a claim or proof against the Borrower (ii) obtaining an
order or judgment in any court or other tribunal or (iii) enforcing any order or
judgment given or made in relation hereto, the Borrower shall indemnify and hold
harmless the Bank from and against any loss suffered as a result of any
discrepancy between (a) the rate of exchange used for such purpose to convert
the sum in question from the first currency into the second currency and (b) the
rate or rates of exchange at which the Bank may in the ordinary course of
business purchase the first
<PAGE>
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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 or claim.
20.03 The indemnity contained in Clause 20.02 shall constitute a separate
obligation of the Borrower distinct from its other obligations hereunder and
shall survive the giving or making of any judgment or order in relation to all
or any of such other obligations.
21. PAYMENTS
21.01 On each date upon which this Agreement requires an amount to be paid by
the Borrower, it shall make the same available to the Paying Agent in same day
funds to the account number listed in Clause 6.04 (or such other account as the
Paying Agent may have specified for this purpose).
21.02 All payments required to be made by the Borrower 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.
21.03 Upon receipt of a payment by the Borrower other than pursuant to Clause
9.01, the Paying Agent will promptly thereafter make such payment available to
the Bank for whose account such payment was received for the account of its
Facility Office.
21.04 Any payments made hereunder shall be applied first for compensation of
costs, then for compensation of damages, then for compensation of interest, then
for repayment of principal.
22. SET-OFF
The Borrower authorizes the Bank to apply any credit balance to which the
Borrower is entitled on any account of the Borrower with the Bank in
satisfaction of any sum due and payable from such Borrower to the Bank hereunder
but unpaid, for this purpose, the Bank is authorized to purchase with the moneys
standing to the credit of any such account such other currencies as may be
necessary to effect such application. The Bank shall not be obliged to exercise
any right given to it by this Clause 22.
PART 10
COSTS AND EXPENSES
23. COSTS AND EXPENSES
23.01 The Borrower shall, from time to time on demand of the
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Paying Agent, reimburse the Paying Agent for all costs and expenses, including
legal fees, incurred in or in connection with the preservation and/or
enforcement of any of the rights of the Paying Agent and the Bank under this
Agreement.
23.02 The Borrower 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 indemnify each Bank and the Paying Agent against any
liabilities, costs, claims and expenses resulting from any failure to pay or any
delay in paying any such tax.
PART 11
ASSIGNMENTS AND TRANSFERS
24. BENEFIT OF AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each party
hereto and its successors and assigns.
25. ASSIGNMENTS AND TRANSFERS
The parties hereto shall not be entitled to assign or transfer all or any of
their respective rights, benefits and obligations hereunder, except, in case of
the Bank, to any entity within its group.
26. DISCLOSURE OF INFORMATION
26.01 Each of the Bank and the Paying Agent:
(i) hereby acknowledges that all information relating to the Group not
available within the public domain provided by or on behalf of the Borrower has
been provided for the purposes of the Facility only;
(ii) hereby covenants with the Borrower that such information shall:
(a) be made available only to such of its officers and employees as
are involved in reviewing and/or monitoring the operation of the Facility; and
(b) be used solely for the purposes of the Facility and will be kept
confidential by it and such officers and employees as aforesaid and will not be
disclosed (subject to clause 26.02) or used for the purpose of dealing or
procuring or causing any person to deal, cause or procure dealings in
<PAGE>
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securities of the Borrower.
26.02 The Bank may, notwithstanding its obligations pursuant to clauses 25 and
26.01, disclosure any information referred to therein (i) if required to do so
by law, any order or judgment of a court of competent jurisdiction or in order
to comply with a requirement or request of any governmental, regulatory or other
authority and/or (ii) in connection with the enforcement or preservation of its
rights, powers or remedies under this Agreement and/or (iii) to its legal or
other professional advisors.
PART 12
MISCELLANEOUS
27. THE PAYING AGENT AND THE BANK
27.01 Each Bank hereby appoints and authorizes the Paying Agent to take such
actions as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Paying Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement, the Paying Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or
refrain from acting (and shall be fully protected in so acting or refraining
form acting) upon the instructions of the Bank; provided, however, that the
Paying Agent shall not be required to take any action which exposes the Paying
Agent to personal liability or which is contrary to this Agreement or applicable
law.
27.02 The Paying Agent agrees to give each Bank prompt notice of each notice
given to it by the Borrower pursuant to the terms of this Agreement.
27.03 Neither the Paying Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it
under or in connection with this Agreement, except for its own gross negligence
or wilful misconduct.
27.04 With respect to its Commitment and the ratable portions of the Advances
made available by it, the Paying Agent shall have the same rights and powers
under this Agreement as any other Bank and may exercise the same as though it
were not to the Paying Agent.
27.05 Each Bank agrees to indemnify the Paying Agent (to the extent not
indemnified by the Borrower), ratably according to the respective amounts of
their Commitments from and against any and
<PAGE>
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all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by, or asserted against the Paying Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Paying Agent under this Agreement, provided that no Bank shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Paying Agent's own gross negligence or wilful misconduct.
28. CALCULATION AND EVIDENCE OF DEBT
28.01 Interest shall accrue from day to day and shall be calculated on the
basis of a year of 360 days and the actual number of days elapsed.
28.02 If on any occasion a Reference Bank fails to supply the Bank or the
Borrower with a quotation required of it under this Agreement, the rate for
which such quotation was required shall be determined from those quotations
which are supplied to the Bank or the Borrower.
28.03 The Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it hereunder.
28.04 In any legal action or proceeding arising out of or in conjunction with
this Agreement, the entries made in the accounts maintained pursuant to Clause
28.03 shall be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded.
28.05 A certificate of the Bank as to (i) the amount by which a sum payable to
it hereunder is to be increased under Clause 11.01 or (ii) the amount for the
time being required to indemnify it against any such cost or liability as is
mentioned in Clause 11.02 or 13.01 shall, in the absence of manifest error, be
prima facie evidence of the existence and extent of the obligations therein
certified.
28.06 Any such certificate referred to in Clause 28.05 shall set out in
reasonable detail the basis and manner of calculation of the amount which is the
subject matter of the relevant claim.
29. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the Bank,
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
<PAGE>
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remedies herein provided are cumulative and not exclusive of any rights or
remedies provided by law.
30. 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.
31. NOTICES
31.01 Each communication to be made hereunder shall be made in writing but,
unless otherwise stated, may be made by telefax or letter.
31.02 Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall (unless that other has by fifteen days'
written notice to the Paying Agent specified another address) be made or
delivered to that other person at the address identified in the First Schedule
and shall be deemed to have been made or delivered when despatched (in the case
of any communication made by telefax so long as the appropriate confirmation of
transmission is received on the termination of transmission of such telefax) 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:
(i) any Notice of Drawdown to be delivered to the Paying Agent shall be
effective only when received by the Paying Agent and then only if the same
is expressly marked for the attention of the department or officer
identified in the First Schedule (or such other department or officer as
the Bank shall from time to time specify for this purpose); and
(ii) any communication or document to be made or delivered to a Bank having more
than one Facility Office shall (unless such Bank has by fifteen days'
written notice to the Paying Agent specified another address) be made or
delivered to such Bank at the address identified in the First Schedule as
its main Facility Office.
31.03 Each communication and instrument made or delivered by one person to
another pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof into English certified (by an officer of
the person making or delivering the same) as being a true and accurate
translation
<PAGE>
- 34 -
thereof.
PART 13
LAW AND JURISDICTION
32. LAW
This Agreement shall be governed by, and construed in accordance with, the laws
of the Netherlands.
33. JURISDICTION
33.01 Each of the parties hereto irrevocably agrees that the District Court in
Amsterdam, the Netherlands, shall have exclusive jurisdiction to hear and
determine any suit, action or proceeding, and to settle any disputes, which may
arise out of or in connection with this Agreement and for such purposes,
irrevocably submits to the exclusive jurisdiction of such courts.
33.02 The parties irrevocably waive any objection which it might now or
hereafter have to the courts referred to in Clause 33.01 being nominated as the
forum to hear and determine any suit, action or proceeding, and to settle any
disputes, which may arise out of or in connection with this Agreement and agree
not to claim that any such court is not a convenient or appropriate forum.
33.03 The parties agree that the process by which any suit, action or
proceeding is begun may be served on it by being delivered in connection with
any suit, action or proceeding in the Netherlands to the Bank at its address
identified in the First Schedule, to the Borrower at its address first above
written.
<PAGE>
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THUS, executed and signed at Amsterdam on the date first above written.
Wolters Kluwer, N.V.
by: /s/ Hans E.M. van Dinter
--------------------------
Hans E.M. van Dinter
--------------------------
- ------------------
in its capacity as Paying Agent
and in its capacity as Bank
by: /s/
--------------------------
--------------------------
- ---------------------------------------------------
by: /s/
--------------------------
--------------------------
- -----------------------------
by: /s/
--------------------------
--------------------------
- --------------
by: /s/
--------------------------
--------------------------
- --------------------------
by: /s/
--------------------------
--------------------------
<PAGE>
- 36 -
THE FIRST SCHEDULE
The Financial Institutions
-1-
Financial Institution :
------------------------
Address :
------------------------
Commitment : $ 475,000,000
Account number : 574-07000-2941 CHIPS 958
Department : Foreign Credit Services
Officer :
------------------------
Telephone number :
------------------------
Fax number :
------------------------
Facility office(s) :
------------------------
-Address :
------------------------
-Department : Foreign Credit Services
-Officer :
------------------------
-Telephone number :
------------------------
-Telefax number :
------------------------
-Paying Agent :
------------------------
-Address :
------------------------
-Account number : 574-07000-2941 CHIPS 958
------------------------
-Department : Agency Services
-Officer :
------------------------
-Telephone number :
------------------------
-Fax number :
------------------------
<PAGE>
- 37 -
The Financial Institutions
-2-
Financial Institution :
----------------------
----------------------
Address : ----------------------
Commitment : US$ 474,000,000
Account number : USD: Morgan Guaranty Trust Company
of New York, New York 658.30.747
Department : Corporate Banking
Officer : ----------------------
Telephone number : ----------------------
Fax number : ----------------------
Facility office(s) : ----------------------
----------------------
-Address : ---------------------
-Department : Operations/Administration
-Officer : ---------------------
-Telephone number : ---------------------
-Telefax number : ---------------------
<PAGE>
- 38 -
The Financial Institutions
-3-
Financial Institution :
--------------------------
Address :
--------------------------
Commitment : US$ 317,000,000
Account number : 36008223 Citibank NA, New York
Department : Corporate Finance
Officer : --------------------------
Telephone number : --------------------------
Fax number : --------------------------
Facility office(s) :
--------------------------
-Address :
--------------------------
-Department : Corporate Finance
-Officer : --------------------------
-Telephone number : --------------------------
-Telefax number : --------------------------
<PAGE>
- 39 -
The Financial Institutions
-4-
Financial Institution :
--------------------
Address :
--------------------
Commitment : US$ 317,000,000
Account number : 021444021
Department : Corporate Banking
Officer :
--------------------
Telephone number :
--------------------
Fax number :
--------------------
Facility office(s) : Amsterdam office
-Address :
--------------------
-Department : Corporate Banking
--------------------
-Officer :
--------------------
-Telephone number :
--------------------
-Telefax number :
--------------------
<PAGE>
- 40 -
The Financial Institutions
-5-
Financial Institution :
-------------------------
Address :
-------------------------
Commitment : US$ 317,000,000
Account number : 467.579.91 R
Department : CBNA
Officer :
-------------------------
Telephone number :
-------------------------
Facility office(s) :
-------------------------
- Address : -------------------------
- Department : KABI
- Officer : -------------------------
- Telephone number : -------------------------
- Telefax number : -------------------------
<PAGE>
- 41 -
THE SECOND SCHEDULE
Condition Precedent Documents
In relation to the Borrower:
(i) a copy, certified a true copy by a managing director of the Borrower,
of the articles of association of the Borrower presently in effect;
(ii) an extract from the Register of the Chamber of Commerce setting out
the names of the person or persons authorized to sign, on behalf of the
Borrower, this Agreement and any documents to be delivered by the Borrower
pursuant hereto; and
(iii) a certificate of a managing director of the Borrower 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 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.
<PAGE>
- 42 -
THE THIRD SCHEDULE
Notice of Drawdown
From: Borrower
To: Paying Agent
Dear Sirs,
1. We refer to the agreement (as from time to time amended, varied, or
supplemented, the "Facility") dated December 29, 1995 and made between Wolters
Kluwer N.V. as the Borrower, and the Bank. 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 upon
the terms and subject to the conditions contained therein, we wish an Advance to
be made to Borrower as follows:
(i) Amount $ _______________
(ii) Drawdown Date _______________
(iii) Term _______________
3. We confirm that, at the date hereof, no event which is or may become (with
the passage of time, the giving of notice, the making of any determination under
the Facility Agreement or any combination thereof) one of those events mentioned
in Clause 18 of the Facility Agreement has occurred.
Yours Faithfully,
----------------------------
for and on behalf of
WOLTERS KLUWER N.V.
