Exhibit 4.4(k)
TENTH SUPPLEMENTAL
INDENTURE
Tenth Supplemental Indenture (this
“ Tenth Supplemental Indenture ”), dated as of
February 13, 2009, among AGB Nielsen Media Research B.V., a
company incorporated in the Netherlands (the “
Guaranteeing Subsidiary ”) and an affiliate of Nielsen
Finance LLC, a Delaware limited liability company, and Nielsen
Finance Co., a Delaware corporation (the “ Issuers
”), and Law Debenture Trust Company of New York, as trustee
(the “ Trustee ”).
W I T N E S S E T H
WHEREAS, the Issuers and the
Guarantors (as defined in the Indenture referred to below) have
heretofore executed and delivered to the Trustee an indenture,
dated as of August 9, 2006, as amended and supplemented from
time to time (the “ Indenture ”), providing for
the issuance of an unlimited aggregate principal amount of Senior
Dollar Notes due 2014 and Senior Euro Notes due 2014 (together, the
“ Notes ”);
WHEREAS, the Indenture provides that
under certain circumstances the Guaranteeing Subsidiary shall
execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Issuers’ Obligations under the Notes and
the Indenture on the terms and conditions set forth herein and
under the Indenture (the “ Guarantee ”);
and
WHEREAS, pursuant to
Section 9.01 of the Indenture, the Trustee is authorized to
execute and deliver this Tenth Supplemental Indenture.
NOW THEREFORE, in consideration of
the foregoing and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties mutually
covenant and agree for the equal and ratable benefit of the Holders
of the Notes as follows:
(1) Capitalized Terms .
Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
(2) Agreement to Guarantee .
The Guaranteeing Subsidiary hereby agrees as follows:
(a) Along with all Guarantors named
in the Indenture, to jointly and severally unconditionally
guarantee to each Holder of a Note authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture,
the Notes or the obligations of the Issuers hereunder or
thereunder, that:
(i) the principal of and interest,
premium and Additional Interest, if any, on the Notes will be
promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all
other obligations of the Issuers to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of
time of payment or renewal of any Notes or any of such other
obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors and the Guaranteeing
Subsidiary shall be jointly and severally obligated to pay the same
immediately. This is a guarantee of payment and not a guarantee of
collection.
(b) The obligations hereunder shall
be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of
the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Issuers, any action to enforce
the same or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a
Guarantor.
(c) The following is hereby waived:
diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Issuers, any
right to require a proceeding first against the Issuers, protest,
notice and all demands whatsoever.
(d) This Guarantee shall not be
discharged except by complete performance of the obligations
contained in the Notes, the Indenture and this Tenth Supplemental
Indenture, and the Guaranteeing Subsidiary accepts all obligations
of a Guarantor under the Indenture.
(e) If any Holder or the Trustee is
required by any court or otherwise to return to the Issuers, the
Guarantors (including the Guaranteeing Subsidiary), or any
custodian, trustee, liquidator or other similar official acting in
relation to either the Issuers or the Guarantors, any amount paid
either to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and
effect.
(f) The Guaranteeing Subsidiary
shall not be entitled to any right of subrogation in relation to
the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
(g) As between the Guaranteeing
Subsidiary, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 of the Indenture
for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such obligations as
provided in Article 6 of the Indenture, such obligations (whether
or not due and payable) shall forthwith become due and payable by
the Guaranteeing Subsidiary for the purpose of this
Guarantee.
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(h) The Guaranteeing Subsidiary
shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Guarantee.
(i) Pursuant to Section 10.02
of the Indenture, after giving effect to all other contingent and
fixed liabilities that are relevant under any applicable Bankruptcy
or fraudulent conveyance laws, and after giving effect to any
collections from, rights to receive contribution from or payments
made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article 10 of the
Indenture, the new Guarantee shall be limited to the maximum amount
permissible such that the obligations of such Guaranteeing
Subsidiary under this Guarantee will not constitute a fraudulent
transfer or conveyance.
(j) This Guarantee shall remain in
full force and effect and continue to be effective should any
petition be filed by or against the Issuers for liquidation,
reorganization, should the Issuers become insolvent or make an
assignment for the benefit of creditors or should a receiver or
trustee be appointed for all or any significant part of the
Issuers’ assets, and shall, to the fullest extent permitted
by law, continue to be effective or be reinstated, as the case may
be, if at any time payment and performance of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee on the Notes and
Guarantee, whether as a “voidable preference”,
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