Exhibit 4.1
Dated 19 April 2002
---------------------------------
CORDIANT COMMUNICATIONS GROUP PLC
and others
Arranged by
THE BANK OF NEW YORK
and
HSBC INVESTMENT BANK PLC
Agent
HSBC INVESTMENT BANK PLC
----------------------------
Restructuring Deed
relating to a
LOAN AGREEMENT
dated 4 July 2000
----------------------------
▇▇▇▇▇▇ ▇▇▇▇
Contents
Clause Page
Interpretation ................................................................1
Amendments to the Principal Agreement .........................................2
Amendment to the Security Trust Deed ..........................................2
Accession of Additional Overdraft Borrowers ...................................2
Accession of Common Security Trustee ..........................................2
Representations and Warranties in Principal Agreement .........................2
Fees and Expenses .............................................................3
Restructuring Date ............................................................3
Waivers .......................................................................4
Miscellaneous .................................................................4
Governing Law and jurisdiction ................................................5
Schedules
Schedule 1 The Borrowers ......................................................6
Schedule 2 Guarantors .........................................................8
Schedule 3 Additional Overdraft Borrowers ....................................13
Schedule 4 Banks .............................................................16
Schedule 5 Documents and evidence required as
conditions precedent to the Restructuring Date .............................. 17
Schedule 6 The Amended and Restated Loan Agreement ...........................29
THIS DEED is dated 19 April 2002 and made BETWEEN:
(1) CORDIANT COMMUNICATIONS GROUP PLC as the Parent;
(2) THE COMPANIES whose names, registered numbers (if any) and registered
offices are set out in part A of Schedule I as Original Borrowers, the
company whose name, registered number (if any) and registered office are
set out in part B of Schedule 1 as the Swingline Borrower, the companies
whose names, registered numbers (if any) and registered offices are set out
in part C of Schedule I as the Overdraft Borrowers;
(3) THE COMPANIES whose names, registered numbers (if any) and registered
offices are set out in part A of Schedule 2 as the Original Guarantors;
(4) THE COMPANIES whose names, registered numbers (if any) and registered
offices are set out in part B of Schedule 2 as the Overdraft Guarantors;
(5) THE COMPANIES whose names, registered numbers (if any) and registered
offices are set out in Schedule 3 as the Additional Overdraft Borrowers;
(6) THE BANK OF NEW YORK and HSBC INVESTMENT BANK PLC as Arrangers;
(7) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set out
in Schedule 4 as Banks;
(8) HSBC INVESTMENT BANK PLC as Agent and Security Trustee and Common Security
Trustee;
(9) THE BANK OF NEW YORK as the Swingline Bank; and
(10) HSBC BANK PLC as the Overdraft Bank.
WHEREAS:
(A) This Deed is supplemental to an agreement dated 4 July 2000 made between
the parties hereto whereby the Banks agreed to make available to the Parent
and the Borrowers facilities of up to US$400,000,000 upon the terms and
subject to the conditions therein contained (the "Principal Agreement") and
to a deed dated 30 August 2000 made between the parties hereto whereby the
Security Trustee agreed to hold the benefit of certain security documents
on trust for the named beneficiaries (the "Security Trust Deed").
(B) The Parent has requested the Bank Finance Parties to amend and restate the
Principal Agreement and the Security Trust Deed, for the Additional
Overdraft Borrowers to become Overdraft Borrowers under the terms of the
Principal Agreement, and for the Common Security Trustee to become Common
Security Trustee under the terms of the Principal Agreement.
NOW IT IS AGREED as follows:
1 Interpretation
1.1 Definitions in Principal Agreement
Unless the context otherwise requires and save as mentioned below, words
and expressions defined in the Principal Agreement as amended and restated
in Schedule 6 to this Deed shall have the same meanings when used in this
Deed. In this Deed the expression the "Restructuring Date" shall have the
meaning given to it in clause 8.1.
1.2 Interpretation of Principal Agreement
References in the Principal Agreement to "this Agreement" shall, with
effect from the Restructuring Date and unless the context otherwise
requires, be references to the Principal
1
Agreement" as amended by this Deed and words such as "herein", "hereof",
"hereunder", "hereafter", "hereby" and "hereto", where they appear in the
Principal Agreement, shall be construed accordingly.
1.3 Incorporation of certain references
Clauses 1.2, 1.3 and 1.4 of the Principal Agreement shall be deemed to be
incorporated in this Deed in full, mutatis mutandis.
1.4 Effect as a Deed
This Deed is intended to take effect as a deed notwithstanding that the
Bank Finance Parties or any other party hereto may have executed it under
hand only.
2 Amendments to the Principal Agreement
The Principal Agreement shall be amended, with effect from the
Restructuring Date, to read as set out in Schedule 6 to this Deed.
3 Amendment to the Security Trust Deed
With effect from the Restructuring Date, the Security Trust Deed will be
amended as follows:
(a) All references throughout the Security Trust Deed to "Finance Parties"
shall be replaced with `Bank Finance Parties".
(b) Clause 1.1: the definition of "Collateral Instruments" shall be
deleted.
(c) Clauses 6.2: The following paragraph shall be added at the end of
clause 6.2: `The parties to the Deed unconditionally and irrevocably
instruct and authorise the Security Trustee to effect the second,
third and fourth applications above by paying the relevant amounts to
the Common Security Trustee for application in accordance with the
lntercreditor Agreement."
(d) Clause 11.3 (New Obligor Entities): clause 11.3 shall be deleted and
replaced with the words "[deleted as superseded by the lntercreditor
Agreement]".
4 Accession of Additional Overdraft Borrowers
With effect from the Restructuring Date, the parties to this Deed agree
that each Additional Overdraft Borrower shall become a party to the
Principal Agreement and an Overdraft Borrower thereunder and with effect
from such date and in such capacity shall assume obligations towards and
rights against the other Borrowers, the Agent, the Arrangers, the Funders
and the other parties to the Principal Agreement.
5 Accession of Common Security Trustee
With effect from the Restructuring Date, the parties to this Deed agree
that the Common Security Trustee shall become a party to the Principal
Agreement and with effect from such date and in such capacity shall assume
obligations towards and rights against the Borrowers, the Agent, the
Arrangers, the Funders and the other parties to the Principal Agreement.
6 Representations and Warranties in Principal Agreement
Each Borrower, Additional Overdraft Borrower, Original Guarantor and
Overdraft Guarantor, and the Parent, represents and warrants to each Bank
Finance Party that the representations and warranties set out in clause
11.1 of the Principal Agreement as amended and restated in Schedule 6 to
this Deed are true and correct as if made at the date of this Deed and on
the Restructuring Date with reference to the facts and circumstances
existing at such dates and as if referring to the Principal Agreement as
amended and restated by this Deed.
2
7 Fees and Expenses
7.1 Fees
The Parent shall pay for the account of such Bank Finance Parties as are
entitled thereto such fees as are set out in the fee letters entitled
"Co-ordination Fee Letter", "Agency and Transaction Fee Letter", "Banks
Restructuring Fee Letter", "Swingline Bank Fee Letter" and "Common Security
Trustee Fee Letter" and dated the same date as this Deed to the Parent in
the amounts and on the terms and conditions set out in such fee letters.
7.2 Expenses
The Parent shall pay to the Agent on demand all expenses (including legal
fees) incurred by the Agent and the Arrangers in connection with the
negotiation, preparation and execution of the Bank Finance Documents and
the completion of the transactions therein contemplated and in connection
with the preparation and distribution of the Information Package and the
granting of any waiver or consent under any of the Bank Finance Documents,
and all such expenses incurred shall by payable by the Parent even if there
is no "Restructuring Date" as defined in clause 8.1.
7.3 Value Added Tax
All fees and expenses payable pursuant to this clause 7 shall be paid
together with an amount equal to any value added tax and similar Taxes
chargeable thereon and any payment made in respect of costs or expenses
shall include an amount equal to the amount of any irrecoverable value
added tax and similar Taxes suffered by the relevant Bank Finance Parties
in respect of such fees and expenses.
7.4 Stamp and other duties
The Parent shall pay all stamp, documentary, registration, notarisation or
other similar duties or Taxes (including any duties or Taxes payable by, or
assessed on, the Bank Finance Parties) imposed on or in connection with the
negotiation, preparation, and execution of any of the Bank Finance
Documents and shall indemnify the Bank Finance Parties against any
liability arising by reason of any delay or omission by the Parent to pay
such duties or Taxes save for any stamp duty payable as a result of any
transfer by any Bank pursuant to clause 18.3 of the Principal Agreement.
8 Restructuring Date
8.1 Conditions precedent documentation
The amendments to be made to the Principal Agreement and the Security Trust
Deed by this Deed and the accession of the Additional Overdraft Borrowers
to the Principal Agreement shall take effect on and from the date (the
"Restructuring Date") on which the Agent notifies the Parent and the Bank
Finance Parties that the Agent has received the documents and evidence
specified in Schedule 5, in each case, in form and substance satisfactory
to it, or, as the case may be, that the requirement to provide any of such
documents or evidence has been waived by the Majority Banks.
8.2 Further Conditions Precedent
The Agent shall give notice of the occurrence of the Restructuring Date
under clause 8.1 unless, on the date on which it would otherwise have done
so, the Agent has received actual knowledge (i) that any Default has
occurred and is continuing unremedied and unwaived (other than the Default
referred to in clause 9) or (ii) that any of the representations and
warranties in clause 6 are untrue or incorrect as at the date they were
made in which event the Agent shall only give such notice if expressly
instructed in writing by the Majority Banks to do so.
8.3 Conditions Subsequent
The Parent undertakes:
3
8.3.1 to deliver to the Common Security Trustee within 3 Banking Days after
the Restructuring Date the constitution of Cordiant Communications
Group Australia Pty Limited and to procure that Chafma B.V. delivers
to the Common Security Trustee within 3 days after the Restructuring
Date the constitution of Cordiant Communications (Australia) Pty
Limited; and
8.3.2 to deliver to the Agent within 5 Banking Days after the Restructuring
Date for distribution to the Banks (in sufficient copies for all the
Banks) the Audited Financial Statements of the Group for the Financial
Year ended 31 December 2001; and
8.3.3 to deliver to the Agent within 30 Banking Days after the Restructuring
Date evidence satisfactory to the Agent that the Zenith SPV has
acceded to the Facilities Group Joint Venture Agreement and that all
of the Group's right, interest and title to shares in Facilities Group
have been transferred to the Zenith SPV;
and failure to comply with either of these undertakings will result in an
Event of Default being deemed to have immediately occurred at the time of
any such failure so that the Banks shall have the rights as set out in
clause 14.2 of the Principal Agreement as amended and restated in Schedule
6 to this Deed.
9 Waivers
9.1 With effect from the Restructuring Date (but without prejudice to their
rights prior to such date) the Banks waive the Events of Default arising by
virtue of the breach of the financial covenants given by the Parent in
clause 13.1 of the Principal Agreement in respect of 31 December 2001 and
the relevant periods ending thereon.
9.2 With effect from the Restructuring Date the Banks waive the requirement at
clause 4.1.1(a) of the Principal Agreement as amended and restated in
Schedule 6 in respect of the Drawdown Notice for the first Advance after
the Restructuring Date only to the extent that such Drawdown Notice may be
provided at such time prior to the proposed Drawdown Date as agreed by the
Agent.
10 Miscellaneous
10.1 Continuation of Principal Agreement and Security Trust Deed
Save as amended by this Deed, the provisions of the Principal Agreement and
the Security Trust Deed shall continue in full force and effect and the
Principal Agreement and this Deed shall be read and construed as one
instrument.
10.2 Guarantees
10.2.1 The Original Guarantors confirm that each of their respective
obligations under the Original Guarantees continue in full force and
effect notwithstanding the amendments effected by this Deed and the
accession of the Additional Overdraft Borrowers to the Principal
Agreement.
10.2.2 The Overdraft Guarantors also confirm that each of their respective
obligations under any guarantees in favour of the Overdraft Bank that
guarantee the obligations of any Group member or members to the
Overdraft Bank continue in full force and effect notwithstanding the
amendments effected by this Deed and notwithstanding the accession of
the Additional Overdraft Borrowers to the Principal Agreement.
10.3 Counterparts
This Deed may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so executed
and delivered shall be an original but all counterparts shall together
constitute one and the same instrument.
10.4 Third Party Rights
4
No term of this Deed is enforceable under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ by a person who is not a party to this Deed.
10.5 Effect as a Deed
This Deed shall take effect as a deed notwithstanding that the Arrangers,
the Banks, the Swingline Bank, the Overdraft Bank, the Agent and the
Security Trustee may have executed it under hand only.
11 Governing Law and jurisdiction
11.1 Law
This Deed shall be governed by English law.
11.2 Submission to jurisdiction
The parties to this Deed agree for the benefit of the Bank Finance Parties
that:
11.2.1 If any party has any claim against any other arising out of or in
connection with this Deed such claim shall (subject to clause 11.2.3)
be referred to the High Court of Justice in England. to the
jurisdiction of which each of the parties irrevocably submits;
11.2.2 the jurisdiction of the High Court of Justice in England over any such
claim against any Bank Finance Party shall be an exclusive
jurisdiction and no courts outside England shall have jurisdiction to
hear or determine any such claim;
11.2.3 nothing in this clause 11.2.3 shall limit the right of any Bank
Finance Party to refer any such claim against any Borrower, Additional
Overdraft Borrower, Original Guarantor or Overdraft Guarantor to any
other court of competent jurisdiction outside England, to the
jurisdiction of which each Borrower, Additional Overdraft Borrower,
Original Guarantor and Overdraft Guarantor hereby irrevocably agrees
to submit, nor shall the taking of proceedings by any Bank Finance
Party before the courts in one or more jurisdictions preclude the
taking of proceedings in any other jurisdiction whether concurrently
or not; and
11.2.4 each Borrower, Additional Overdraft Borrower, Original Guarantor and
Overdraft Guarantor irrevocably waives any objection to proceedings in
the courts mentioned in this clause 11.2 and any claim on the grounds
of forum non conveniens.
11.3 Parent for service of process
Each Borrower, Additional Overdraft Borrower, Original Guarantor and
Overdraft Guarantor not incorporated in England and Wales irrevocably
designates, appoints and empowers the Parent at the address set out in
Schedule I to receive for it and on its behalf service of process issued
out of the High Court of Justice in England in relation to any claim
arising out of or in connection with this Deed and the Parent irrevocably
and unconditionally accepts such appointment and each similar appointment
of the Parent as an English process agent made by any Obligor under any
other Bank Finance Document from time to time.
11.4 Waiver of jury trial
EACH BORROWER, ADDITIONAL OVERDRAFT BORROWER, ORIGINAL GUARANTOR AND
OVERDRAFT GUARANTOR HEREBY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDINGS ANYWHERE ARISING OUT OF OR RELATING TO THIS DEED OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS whereof the parties hereto have caused this Deed to be duly
executed and delivered as a deed on the day and year first above written.
5
Schedule 1
The Borrowers
PART A - ORIGINAL BORROWERS
---------------------------
Name of Borrower Registered Number Registered office/address
(if any)
1 Cordiant Communications 1320869 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
2 ▇▇▇▇▇ UK Limited 913184 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
3 Cordiant US Holdings Inc. ▇▇-▇▇▇▇▇▇▇ Corporation Trust Centre
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
4 ▇▇▇▇▇ Deutschland Holding HRB 8608 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
PART B - SWINGLINE BORROWERS
----------------------------
Name of Borrower Registered Number Registered office/address
(if any)
1 Cordiant U.S. Holdings Inc. ▇▇-▇▇▇▇▇▇▇ Corporation Trust Centre
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
6
PART C - OVERDRAFT BORROWERS
----------------------------
Name of Overdraft Registered Number Registered office/address
Borrower (if any)
1 Atlas Advertising Limited 964286 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
2 ▇▇▇▇▇ Overseas Holdings 2217108 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
3 ▇▇▇▇▇ UK Limited 913184 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
4 Cordiant Communications 1320869 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
5 Cordiant Group Limited 63031 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
6 Cordiant Property Holdings 2263916 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
7 ICM International Limited 1802173 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
8 Swot Plus Limited 1929347 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
9 The Decision Shop Limited 615225 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
10 XMSS Limited 2463385 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
7
Schedule 2
Guarantors
PART A - ORIGINAL GUARANTORS
----------------------------
Name of Guarantor Registered Number Registered office/address
(if any)
1 Cordiant Communications 1320869 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
2 ▇▇▇▇▇ Europe Limited 689584 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
3 ▇▇▇▇▇ UK Limited 913184 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
4 Atlas Advertising Limited 964286 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
5 The Decision Shop Limited 615225 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
6 ICM International Limited 1802173 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
7 Cordiant US Holdings Inc. ▇▇-▇▇▇▇▇▇▇ Corporation Trust Centre
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Delaware
8 ▇▇▇▇▇ Advertising USA Inc. 132993871 ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
One Chase ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
9 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Public ▇▇-▇▇▇▇▇▇▇ CT Corporation System
Relations, Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
10 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Advertising ▇▇-▇▇▇▇▇▇▇ CT Corporation System
Inc. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
11 ▇▇▇▇▇ Worldwide 51 0306788 Corporation Trust Center
(Delaware), Inc. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
8
Name of Guarantor Registered Number Registered office/address
(if any)
12 CCG.XM Inc ▇▇-▇▇▇▇▇▇▇ Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Delaware
13 Healthworld Corporation Inc ▇▇-▇▇▇▇▇▇▇ Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Delaware
14 ▇▇▇▇▇ Healthworld Inc ▇▇-▇▇▇▇▇▇▇ c/o ▇▇▇▇▇▇▇ J Kopcszk
CCG Worldwide, Inc.
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
15 ▇▇▇▇ Healthworld Inc. ▇▇-▇▇▇▇▇▇▇ Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
16 Lighthouse Global Network ▇▇-▇▇▇▇▇▇▇ Corporation Trust Center
Inc. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
17 Fitch Inc. ▇▇-▇▇▇▇▇▇▇ Ct Corporation System
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
18 ▇▇▇▇▇▇ ▇▇▇▇▇ Associates 13 312 8710 c/o ▇▇▇▇▇▇▇ J Kopcszk
Inc. CCG Worldwide, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
19 ▇▇▇▇▇ Deutschland Holdings HRB 8608 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇-▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
20 Cordiant Communications ACN: 003 ▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Group Australia Pty. Limited ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
9
PART B - OVERDRAFT GUARANTORS
-----------------------------
Name of Overdraft Registered Number Registered office/address
Guarantor (if any)
1 Atlas Advertising Limited 964286 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
2 ▇▇▇▇▇ Overseas Holdings 2217108 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
3 ▇▇▇▇▇ UK Limited 913184 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
4 Cordiant Communications 1320869 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
5 Cordiant Group Limited 63031 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
6 Cordiant Property Holdings 2263916 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
7 ICM International Limited 1802173 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
8 Swot Plus Limited 1929347 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
9 The Decision Shop Limited 615225 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
10 XMSS Limited 2463385 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
11 Healthworld Holdings 3458882 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
12 ▇▇▇▇▇▇ Marketing Group 3113109 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
13 Fitch Design Consultants 670130 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
14 Financial Dynamics Limited 1656428 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
10
Name of Overdraft Registered Number Registered office/address
Guarantor (if any)
15 Connect Six Limited 2191533 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
16 Connect Five Limited 1928295 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
17 Clarion Communications 2517824 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(▇.▇.) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
18 Corporate and Financial 2693509 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
19 Headcount Worldwide Field 1425412 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
20 Colwood Healthworld 2213846 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
21 ▇▇▇▇▇ Healthworld Limited 3961667 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
22 ▇▇▇▇▇▇ Marketing Limited 1385429 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
23 Financial Dynamics Holdings 3345319 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
24 Lighthouse Holdings (UK) 3719632 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
25 PSD Associates Limited 2431038 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
26 ▇▇▇▇▇▇ & Friends London 3398022 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
27 N.A.S.A.2.0 London Limited 3942853 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
28 CCG.XM 4023322 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
11
Name of Overdraft Registered Number Registered office/address
Guarantor (if any)
29 CCG.XM Holdings Limited 3961670 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
30 Bamber Forsyth Limited 2097924 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
31 Bulletin International Limited 2581681 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ 3778367 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
33 PCI Live Design Limited 3053382 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
34 Ultimate Events Limited 3730309 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
35 Business Communications 4048310 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
International Group Limited ▇▇▇▇▇▇ ▇▇ ▇▇▇
36 Fitch Worldwide Limited 4135498 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
12
Schedule 3
Additional Overdraft Borrowers
Name of Additional Registered Number Registered office/address
Overdraft Borrower (if any)
1 Healthworld Holdings 3458882 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
2 ▇▇▇▇▇▇ Marketing Group 3113109 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
3 Headcount Worldwide Field 1425412 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
4 Colwood Healthwood 2213846 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
5 ▇▇▇▇▇ Healthworld Limited 3961667 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
6 ▇▇▇▇▇ Europe Limited 689584 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
7 ▇▇▇▇▇▇ Marketing Limited 1385429 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
8 Financial Dynamics Holdings 3345319 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
9 Lighthouse Holdings (UK) 3719632 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
10 Fitch Design Consultants 670130 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
11 Financial Dynamics Limited 1656428 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
12 Connect Six Limited 2191533 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
13 Connect Five Limited 1928295 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
13
Name of Additional Registered Number Registered office/address
Overdraft Borrower (if any)
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
15 PSD Associates Limited 2431038 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
16 ▇▇▇▇▇▇ & Friends London 3398022 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
17 N.A.S.A.2.0 London Limited 3942853 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
18 CCG.XM 4023322 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
19 CCG.XM Holdings Limited 3961670 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
20 Bamber Forsyth Limited 2097924 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
21 Corporate and Financial 2693509 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
22 Bulletin International Limited 2581681 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (▇▇) ▇▇▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
24 PCI Live Design Limited 3053382 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
25 Business Communications 4048310 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
International Group Limited ▇▇▇▇▇▇ ▇▇ ▇▇▇
26 Fitch Worldwide Limited 4135498 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
27 Cordiant (US) Holdings 4242432 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
14
Name of Additional Registered Number Registered office/address
Overdraft Borrower (if any)
28 Fitch International Limited 2699605 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
29 Fitch Limited 1388429 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
30 Healthworld UK Holdings 3961678 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1012296 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
32 Deckchair Studios Limited 644752 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
33 ▇▇▇ ▇▇▇▇▇ Holdings Limited 553986 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
34 C&FD (Holdings Limited) 3560931 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
35 Cordiant Overseas Holdings 4135469 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
36 Propose Two Limited 3649589 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
37 Secure Two Limited 3646997 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
38 Connect One Limited 1929925 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
39 Sonic Sun Limited 4350720 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
40 CCG.XM (UK) Limited 3942085 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
15
Schedule 4
Banks
Name of Bank Address
1 HSBC Bank plc Media/Telecoms Group
▇▇-▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
2 The Bank of New York ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
3 ABN AMRO Bank N.V., London Branch ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
4 Allied Irish Banks, plc Corporate Banking Britain
St Helen's
▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
5 Bank of Scotland ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
6 Banque Worms Tour Voltaire
▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇--▇▇▇▇▇ ▇▇▇▇▇ ▇▇ Defense
FRANCE
7 Citibank, N.A. Media & Communications Group
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ OF AMERICA
8 Fleet National Bank ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ OED
9 Mizuho Corporate Bank, Ltd River ▇▇▇▇▇ ▇▇▇▇▇
▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
10 Lloyds TSB Bank plc Credit Services
▇▇▇ ▇▇▇▇▇
▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ plc Corporate and Institutional
Banking
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
12 Scotiabank Europe plc Scotia House
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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13 Westdeutsche Landesbank Girozentrale Woolgate Exchange
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16
Schedule 5
Documents and evidence required as conditions precedent to the Restructuring
Date
1 Corporate
1.1 A certificate from each Obligor incorporated in England and Wales
substantially in the form of annexure A to this Schedule 5, together
with all the documents referred to therein.
1.2 A certificate from each Obligor incorporated in the US substantially
in the form of annexure B to this Schedule 5, together with all the
documents referred to therein.
1.3 A certificate from each Obligor incorporated in Germany substantially
in the form of annexure C to this Schedule 5, together with all the
documents referred to therein.
1.4 A certificate from each Obligor incorporated in the Netherlands
substantially in the form of annexure D to this Schedule 5, together
with all the documents referred to therein.
1.5 A certificate from each Obligor incorporated in Australia
substantially in the form of annexure E to this Schedule 5, together
with all the documents referred to therein.
2 Credit Documents
2.1 This Deed, duly executed by all parties to it.
2.2 A copy, certified as a true copy by an Authorised Officer of the
Parent, of an agreement amending the Note Purchase Agreement in
accordance with the Noteholders' term sheet attached to the Agreement
in Principle together with confirmation that all conditions to such
amendments becoming effective (other than in respect of the amendment
of the Principal Agreement in accordance with the terms of this Deed)
have been satisfied.
3 Security Documents
3.1 The Security Memorandum, duly executed.
3.2 All Security Documents and other documents required in accordance with
the Security Memorandum in each case in accordance with the basis set
out in the Security Memorandum.
3.3 The lntercreditor Agreement, duly executed by all the parties thereto.
3.4 The Common Security Trust Deed, duly executed by all the parties
thereto.
3.5 The Pledge Agreement to be executed by Cordiant Communications Group
plc, Cordiant Holdings GmbH, ▇▇▇▇▇ Deutschland Holding GmbH and ▇▇▇▇▇
Germany Werbeagentur GmbH over the shares in the relevant German
Subsidiaries.
3.6 The Abstract Acknowledgement of Indebtedness to be executed by
Cordiant Communications Group plc.
3.7 Notices to banks of an account charge in the form of Schedule 5 to the
Composite Guarantee and Debenture to be entered into by Obligors
incorporated in the UK in favour of the Common Security Trustee on or
about the date of the Restructuring Deed as required by the Security
Memorandum.
4 Opinions
4.1 An opinion of ▇▇▇▇▇▇ ▇▇▇▇ dated not more than 5 Banking Days prior to
the Restructuring Date.
17
4.2 Local law legal opinions from legal advisers to the Agent, the Banks
and the Common Security Trustee in each jurisdiction in which an
Obligor is incorporated in respect of the Bank Finance Documents.
4.3 US law legal opinions from White & Case, legal advisers to the Parent,
in respect of the Obligors incorporated in the US states of New York,
Delaware and California.
4.4 US law legal opinions from legal advisers to the Agent, the Banks and
the Common Security Trustee in respect of the Obligors incorporated in
the US states of New Hampshire, Ohio, Texas and Washington.
4.5 An opinion of ▇▇▇▇▇▇▇▇, Hollingdale & Page, Australian law legal
advisers to the Parent, in respect of stamp duty payable on the
Australian share pledges listed in paragraph 3.10 of The Security
Memorandum.
5 Financial
5.1 The Accountants' Report addressed (among others) to the Bank Finance
Parties and the Parent including confirmation that the Bank Finance
Parties and the Parent may rely thereon.
5.2 A report from PricewaterhouseCoopers addressed (among others) to the
Finance Parties including confirmation that the Finance Parties may
rely thereon.
5.3 A letter from the Auditors confirming that they continue to be
appointed as the auditors of the Parent, and confirming that they will
provide the Auditors Report in accordance with the Principal Agreement
as amended and restated in Schedule 6 to this Deed.
5.4 The Hedging Strategy Letter, duly executed.
5.5 A copy, certified as a true, complete and up-to-date copy by an
Authorised Officer of the Parent, of the Group Structure Charts.
5.6 A copy, certified as a true, complete and up-to-date copy by an
Authorised Officer of the Parent of the Financial Model.
5.7 Copies, certified as true, complete and up-to-date copies by an
Authorised Officer of the Parent, of the unaudited financial
statements of the Group for the Financial Year ended 31 December 2001.
5.8 Copies, certified as true, complete and up-to-date copies by an
Authorised Officer of the Parent of the quarterly management accounts
of the Group for the quarter ended 31 December 2001, and the monthly
management accounts for the month ended 28 February 2002, (and which
shall be deemed to have been delivered pursuant to clauses 12.1.6(b)
and (c) of the Principal Agreement as amended and restated in Schedule
6 to this Deed).
6 Transaction Costs
6.1 The co-ordination, agency and transaction fee letter, the banks
restructuring fee letter, the swingline bank fee letter and the common
security trustee fee letter referred to in clause 7.1, together with
payment of any fees referred to therein which are payable on or before
the Restructuring Date.
6.2 Receipt by the Agent of the other fees, expenses and Taxes payable by
the Parent in accordance with clause 7.
7 Miscellaneous
7.1 Either:
18
7.1.1 a copy, certified as a true copy by an Authorised Officer of the
Parent of all consents, authorisations, licences and approvals
required by the Parent and each Obligor to authorise, or required by
the Parent and each Obligor in connection with, the execution,
delivery, validity, enforceability and admissibility in evidence of
the Bank Finance Documents and the performance by the Parent and each
Borrower of its respective obligations under the Bank Finance
Documents, or
7.1.2 a certificate signed by an Authorised Officer of the Parent that no
such consent, authonsation, licence or approval referred to in
paragraph 7.1.1 above is required by the Parent or any Obligor.
7.2 A certificate from an Authorised Officer of the Parent confirming that
utilisation in full of the Facilities (as amended pursuant to this
Deed) would not render the Parent or any Borrower in breach of any
restriction on borrowings applicable to the Parent or any Borrower in
its respective constitutional documents or elsewhere.
7.3 Evidence of the repayment of the Korean debenture stock.
7.4 Evidence that the Zenith SPV has acceded to the Zenith Joint Venture
Agreement and that all of the Group's right, interest and title to
shares in Zenith have been transferred to the Zenith SPV.
7.5 A certificate of an Authorised Officer of the Parent confirming that,
immediately following the Restructuring Date, the Group will have no
Encumbrances other than Permitted Encumbrances (including, without
limitation, duly certified copies of any release documentation in
respect of any such Encumbrances that are not Permitted Encumbrances).
7.6 A certificate of an Authorised Officer of the Parent confirming that,
immediately following the Restructuring Date, the Group will have no
Borrowed Money other than as permitted by the Principal Agreement as
amended and restated in Schedule 6 to this Deed.
7.7 A certificate of a director of each Additional Overdraft Borrower
confirming that utilisation by it of the Overdraft Facility in full
would not cause any borrowing limit binding on it to be exceeded.
7.8 Evidence that each Additional Overdraft Borrower has acceded to the
Unlimited Multi-lateral Guarantee dated 14 December 2001 in favour of
the Overdraft Bank.
7.9 A copy of the Drawdown Notice containing an irrevocable payment
instruction to the Agent under the terms of Principal Agreement as
amended and restated in Schedule 6 to this Deed to repay all amounts
outstanding under the Loan Agreement dated 4 April 2002 between the
Parent, the Arrangers, the Agent, the Banks and the Security Trustee
for a (pound)20,000,000 bridge loan facility.
19
Annexure A
DIRECTOR'S CERTIFICATE FOR COMPANIES
INCORPORATED IN ENGLAND AND WALES
I, [o], being a director of [o], a private company with limited liability
incorporated and existing under the laws of England and Wales (the "Company")
refer to:
1 the restructuring deed dated on or about the date of this certificate
between, amongst others, Cordiant Communications Group plc as Parent (1),
the companies whose respective names, registered numbers (if any) and
registered offices are set out in schedule 1 thereto as Borrowers (2), the
companies whose respective names, registered numbers (if any) and
registered offices are set out in schedule 2 thereto as Original Guarantors
(3). the companies whose respective names, registered numbers (if any) and
registered offices are set out in schedule 2 thereto as Overdraft
Guarantors (4), the companies whose respective names, registered numbers
(if any) and registered offices are set out in schedule 3 thereto as
Additional Overdraft Borrowers (5) The Bank of New York and HSBC Investment
Bank plc as Arrangers (6), the banks and financial institutions whose
respective names and addresses are set out in schedule 3 thereto as Banks
(7), HSBC Investment Bank plc as Agent, Security Trustee and Common
Security Trustee (8), The Bank of New York as Swingline Bank (9) and HSBC
Bank plc as Overdraft Bank (10) (the "Restructuring Deed"),
2 an amended and re-stated note purchase agreement amending certain note
purchase agreements dated as of 5 April 2001 made between the Cordiant
Finance, Inc. (the "Issuer"), the Parent as Parent Guarantor and the
purchasers identified therein, pursuant to which the Issuer issued and sold
$175,000,000 in aggregate principle amount of its 7.61% Guaranteed Senior
Notes due 2011 (as defined therein the "Notes") and currently being held by
the holders of the Notes (the "Amended Note Purchase Agreement"); and
3 an intercreditor agreement (the "lntercreditor Agreement") entered into,
between, among others, the Company and the Beneficiaries (as defined
therein).
AND HEREBY CERTIFY:
1. Constitutional Documents
The constitutional documents of the Company, which were attached to the
director's certificates dated 2 April 2002 in connection with the Bridge
Facility Agreement between, amongst others, Cordiant Communications Group
plc, The Bank of New York and HSBC Investment Bank plc, dated 4 April 2002,
shall be deemed to be attached hereto as true, complete and up to date
copies of such documents, and there are no other constitutional documents
of the Company. [Note: except for CCG.XM (UK) Limited which must attach its
constitutional documents as annexure "A" and realphabetise the other
annexures accordingly.]
2. Corporate Resolutions
The documents annexed to this certificate as annexure "A" are true copies
of the minutes of a meeting of the board of directors of the Company duly
convened and held on 2002. The resolutions set out therein were duly
passed, are binding and have not been amended or revoked. The adoption of
such resolutions, the entry into the Documents (as defined in the board
resolutions referred to above) and the consummation of the transactions
contemplated thereby are for the purposes of the corporate benefit of the
Company. No borrowing limits or other restrictions (or lack of power) in
relation to the giving of guarantees or security or otherwise of the
Company will be exceeded as a result of the Company entering into, or
borrowing moneys under any Finance Document (as defined in the
lntercreditor Agreement), or giving the guarantees and security thereunder
or incurring or performing the obligations expressed to be assumed by it
thereunder.
20
3. Company Status
No administration order has been made in respect of the Company, no order
has been made or resolution passed for winding up the Company, no petition
has been presented for an administration order in respect of the Company,
and no administration receiver, receiver, or receiver and manager has been
appointed in respect of the Company.
4. Authorised Signatories
Set out below are true signatures of those persons authorised by the
resolutions of the board of directors of the Company referred to in
paragraph 2 above to sign any of the Documents and to execute all such
undertakings, statements, certificates, notices, acknowledgements and other
documents as may be required to be done, signed and executed by or on
behalf of the Company in connection with the Documents and otherwise in
relation to or ancillary to the same.
[ ]
[ ]
SIGNED [o]
----------------------
Director
21
Annexure B
CERTIFICATE OF SECRETARY
OF [US SUBSIDIARY]
I, [o], being the Secretary] [Assistant Secretary] of [o], a corporation (the
"Company") refer to the restructuring deed dated on or about the date of this
certificate between, amongst others. Cordiant Communications Group plc as Parent
(1), the companies whose respective names, registered numbers (if any) and
registered offices are set out in schedule I thereto as Borrowers (2), the
companies whose respective names, registered numbers (if any) and registered
offices are set out in schedule 2 thereto as Original Guarantors (3), the
companies whose respective names, registered numbers (if any) and registered
offices are set out in schedule 2 thereto as Overdraft Guarantors (4), the
companies whose respective names, registered numbers (if any) and registered
offices are set out in schedule 3 thereto as Additional Overdraft Borrowers (5)
The Bank of New York and HSBC Investment Bank plc as Arrangers (6), the banks
and financial institutions whose respective names and addresses are set out in
schedule 3 thereto as Banks (7), HSBC Investment Bank plc as Agent; Security
Trustee and Common Security Trustee (8), The Bank of New York as Swingline Bank
(9) and HSBC Bank plc as Overdraft Bank (10) (the "Restructuring Deed"; all
capitalized terms not defined herein are used as such terms are defined in the
Restructuring Deed),
AND HEREBY CERTIFY:
1. Organizational Documents
The documents annexed to this certificate as annexure "A" constitute a
true, complete and up to date copy of the certificate or articles of
incorporation and bylaws of the Company as in full force and effect on the
date hereof. No amendment or other modification affecting the Company's
certificate or articles of incorporation have been filed, recorded or
executed, and no authorization for the filing, recording or execution of
any such amendment or modification is outstanding. No amendment to the
bylaws is contemplated and such bylaws continue in force on the date
hereof.
2. Corporate Resolutions
The documents annexed to this certificate as annexure "B" are true copies
of the minutes of a meeting of the board of directors of the Company duly
convened and held on [.1 or, as appropriate, an action by the unanimous
consents of the directors dated [o]. The resolutions set out therein were
duly passed, are binding and have not been amended or revoked. (No
borrowing limits or other restrictions (or lack of power) in relation to
the giving of guarantees or security or otherwise of the Company will be
exceeded as a result of the Company entering into the [Documents] (as
defined in the minutes referred to above), [or borrowing moneys under any
Bank Finance Document (as defined in the Restructuring Deed),] or giving
the guarantees and security thereunder or incurring or performing the
obligations expressed to be assumed by it thereunder.(1)
3. Certificate of Good Standing
The document attached as annexure "C" is a true, correct and complete copy
of a Certificate of Good Standing of the Company from the Secretary of
State of [State of Organisation]. No event has occurred since the date
thereof which has affected the good standing of the Company under the laws
of the State of [State of Organisation].
4. Composition of the board of directors
Set out below are the names of all of the directors of the Company, duly
appointed or elected as such, and there are no other directors of the
Company
----------------
1 To be inserted for those subsidiaries that are not signing the
Restructuring Deed.
22
[Name] [Title]
[Name] [Title]
5. Authorized Signatories
Set out below are true signatures of those persons authorized (whether
signing alone or jointly) by the resolutions of the board of directors of
the Company referred to in paragraph 2 above or otherwise to sign the
Restructuring Deed and any of the documents relating thereto and to execute
all such undertakings, statements, certificates, notices, acknowledgements
and other documents as may be required to be done, signed and executed by
or on behalf of the Company in connection with the Restructuring Deed and
otherwise in relation to or ancillary to the same.
[ ]
[ ]
SIGNED [o]
----------------------
Director
23
Annexure C
DIRECTOR'S CERTIFICATE FOR COMPANIES
INCORPORATED IN GERMANY
I, [o], being a managing director ("Geschaftsfuhrer"') of [o], a private company
with limited liability incorporated and existing under the laws of Germany (the
"Company") refer to the restructuring deed dated on or about the date of this
certificate between, amongst others, Cordiant Communications Group plc as Parent
(1), the companies whose respective names, registered numbers (if any) and
registered offices are set out in schedule I thereto as Borrowers (2), the
companies whose respective names, registered numbers (if any) and registered
offices are set out in schedule 2 thereto as Original Guarantors (3), the
companies whose respective names, registered numbers (if any) and registered
offices are set out in schedule 2 thereto as Overdraft Guarantors (4). the
companies whose respective names, registered numbers (if any) and registered
offices are set out in schedule 3 thereto as Additional Overdraft Borrowers (5)
The Bank of New York and HSBC Investment Bank pie as Arrangers (6), the banks
and financial institutions whose respective names and addresses are set out in
schedule 3 thereto as Banks (7), HSBC Investment Bank plc as Agent, Security
Trustee and Common Security Trustee (8), The Bank of New York as Swingline Bank
(9) and HS8C Bank plc as Overdraft Bank (10) (the "Restructuring Deed"),
AND HEREBY CERTIFY:
1. Constitutional Documents
The documents annexed to this certificate as annexure "A" constitute a
true, complete and up to date copy of the articles of incorporation
("Gruendungsurkunde") and articles of association ("Gesellschaftsvertrag")
of the Company containing all modifications thereto, an up-to-date
certified excerpt from the commercial register ("Handelsregisterauszug7)
and there are no other constitutional documents (Geschattsordnungen,
Beiratsordnungen etc.) of the Company.
2. Resolutions
The documents annexed to this certificate as annexure "B" are true copies
of the resolutions of a meeting of the shareholder's of the Company dated
[o]. The resolution(s) set out therein were duly passed, are binding and
have not been amended or revoked. The Company does not act in excess of its
internal limits or restrictions when executing the documents mentioned in
the resolution (hereinafter "the Documents").
3. Authorised Signatories
Set out below are true signatures of those persons who, according to the
commercial register (Handelsregister), are authorized (whether signing
alone or jointly) to sign any of the (Documents] and to execute all such
undertakings, statements, certificates, notices, acknowledgements and other
documents as may be required to be done, signed and executed by or on
behalf of the Company in connection with the [Documents] and otherwise in
relation to or ancillary to the same.
[ ]
[ ]
SIGNED [o]
-----------------
Director
24
Annexure D
DIRECTOR'S CERTIFICATE FOR COMPANIES
INCORPORATED IN THE NETHERLANDS
I, [o], being a director of [o], a private company with limited liability
incorporated and existing under the laws of the Netherlands (the "Company")
refer to the restructuring deed dated on or about the date of this certificate
between, amongst others, Cordiant Communications Group plc as Parent (1), the
companies whose respective names, registered numbers (if any) and registered
offices are set out in schedule I thereto as Borrowers (2), the companies whose
respective names, registered numbers (if any) and registered offices are set out
in schedule 2 thereto as Original Guarantors (3), the companies whose respective
names, registered numbers (if any) and registered offices are set out in
schedule 2 thereto as Overdraft Guarantors (4). the companies whose respective
names, registered numbers (if any) and registered offices are set out in
schedule 3 thereto as Additional Overdraft Borrowers (5) The Bank of New York
and HSBC Investment Bank plc as Arrangers (6), the banks and financial
institutions whose respective names and addresses are set out in schedule 3
thereto as Banks (7). HSBC Investment Bank plc as Agent, Security Trustee and
Common Security Trustee (8), The Bank of New York as Swingline Bank (9) and HSBC
Bank pie as Overdraft Bank (10) (the "Restructuring Deed"),
AND HEREBY CERTIFY:
1. Constitutional Documents
The documents annexed to this certificate as annexure "A" constitute a true
and up to date copy of the current articles of association of the Company
containing all modifications thereto and there are no bylaws
(directiereglement), resolutions of the general meeting of shareholders,
or any other corporate body, which contain rules or regulations with a view
to the management or the organization of the Company, or any other
constitutional documents of the Company.
2. Corporate Resolutions
The documents annexed to this certificate as annexure `B" are true copies
of the written resolutions of (i) the board of managing directors of the
Company and (ii) the general meeting of shareholders of the Company. The
resolutions set out therein were duly passed, are binding and have not been
amended or revoked. The adoption of such resolutions, the entry into the
Documents (as defined in the board resolutions referred to above) and the
consummation of the transactions contemplated thereby are for the purposes
of the corporate benefit of the Company and do not transgress the purpose
of the Company. No restrictions (or lack of power) in relation to the
giving of guarantees or security or otherwise of the Company will be
exceeded as a result of the Company entering into the Documents, giving the
guarantees and security thereunder or incurring or performing the
obligations expressed to be assumed by it thereunder.
3. Authorised Signatories
Set out below are true signatures of those persons authorized by the
resolutions of the board of managing directors of the Company referred to
in paragraph 2 above to sign any of the Documents, and to execute alt such
undertakings, statements, certificates, notices, acknowledgements and other
documents as may be required to be done, signed and executed by or on
behalf of the Company in connection with the Documents and otherwise in
relation to or ancillary to the same.
[ ]
[ ]
SIGNED [o]
25
-----------------
Director
26
Annexure E
DIRECTOR'S CERTIFICATE FOR COMPANIES
INCORPORATED IN AUSTRALIA
I, [o], being a director of [o], a private company with limited liability
incorporated and existing under the laws of Australia (the "Company") refer to
the restructuring deed dated on or about the date of this certificate between,
amongst others. Cordiant Communications Group plc as Parent (1), the companies
whose respective names, registered numbers (if any) and registered offices are
set out in schedule I thereto as Borrowers (2), the companies whose respective
names, registered numbers (if any) and registered offices are set out in
schedule 2 thereto as Original Guarantors (3), the companies whose respective
names, registered numbers (if any) and registered offices are set out in
schedule 2 thereto as Overdraft Guarantors (4), the companies whose respective
names, registered numbers (if any) and registered offices are set out in
schedule 3 thereto as Additional Overdraft Borrowers (5) The Bank of New York
and HSBC Investment Bank plc as Arrangers (6), the banks and financial
institutions whose respective names and addresses are set out in schedule 3
thereto as Banks (7), HSBC Investment Bank plc as Agent, Security Trustee and
Common Security Trustee (8). The Bank of New York as Swingline Bank (9) and HSBC
Bank plc as Overdraft Bank (10) (the "Restructuring Deed"),
AND HEREBY CERTIFY:
1. Constitutional Documents
The documents annexed to this certificate as annexure "A" constitute a true
and up to date copy of the certificate of incorporation, each certificate
of change of name of the Company, and the constitution of the Company
containing all modifications thereto and there are no other constitutional
documents of the Company.
2. Corporate Resolutions
The documents annexed to this certificate as annexure "B" are certified
extracts of the minutes of a meeting of the board of directors of the
Company duly convened and held on [o]. The resolutions set out therein were
duly passed, are binding and have not been amended or revoked. The adoption
of such resolutions, the entry into the [Documents] (as defined in the
board resolutions referred to above) and the consummation of the
transactions contemplated thereby are for the purposes of the corporate
benefit of the Company. No borrowing limits or other restrictions (or lack
of power) in relation to the giving of guarantees or security or otherwise
of the Company will be exceeded as a result of the Company entering into
the Documents, or giving the guarantees and security thereunder or
incurring or performing the obligations expressed to be assumed by it
thereunder.
3. Authorised Signatories
Set out below are true signatures of those persons authorized by the
resolutions of the board of directors of the Company referred to in
paragraph 2 above to sign any of the (Documents] and to execute all such
undertakings, statements, certificates, notices, acknowledgements and other
documents as may be required to be done, signed and executed by or on
behalf of the Company in connection with the [Documents] and otherwise in
relation to or ancillary to the same.
[ ]
[ ]
27
4. Solvency
The Company is solvent. The Company is not prevented by Chapter 2E, Chapter
2J or any other provision of the Corporations ▇▇▇ ▇▇▇▇ (Cth) from entering
into and performing any of the [Documents] or giving the guarantees or
securities thereunder.
SIGNED [o]
--------------------
Director
28
Schedule 6
The Amended and Restated Loan Agreement
(See next page]
29
LOAN AGREEMENT
For
Facilities of up to(pound)155,871,146.52
to
CORDIANT COMMUNICATIONS GROUP PLC
and others
Arranged by
THE BANK OF NEW YORK
And
HSBC INVESTMENT BANK PLC
Agent
HSBC INVESTMENT BANK PLC
▇▇▇▇▇▇ ▇▇▇▇
Contents
Clause Page
1 Purpose and definitions...................................................1
2 The Facilities...........................................................23
3 Conditions...............................................................24
4 The Facilities; Currencies...............................................25
5 Interest; alternative interest rates.....................................28
6 The Overdraft Facility and the Swingline Facility........................30
7 Indemnity of Overdraft Bank and Swingline Bank...........................34
8 Repayment, prepayment and cancellation...................................36
9 Fees and expenses........................................................40
10 Payments and Taxes; accounts and calculations............................43
11 Representations and warranties...........................................48
12 Undertakings.............................................................52
13 Financial Covenants......................................................66
14 Events of Default........................................................68
15 Indemnities..............................................................72
16 Unlawfulness and increased costs; mitigation.............................73
17 Set-off and pro rata payments............................................76
18 Assignment, substitution, lending offices, Additional Borrowers
and Affiliates of Banks..................................................77
19 Arranger, Agent, Security Trustee, Common Security Trustee and
Reference Banks..........................................................81
20 Notices and other matters................................................87
21 Governing law and jurisdiction...........................................89
Schedule 1...................................................................90
Part A - Original Borrowers..............................................90
Schedule 2 The Banks and their Commitments...................................97
Schedule 3 Part A - Form of Drawdown Notice..................................99
Schedule 4..................................................................102
Part A - Documents and evidence required as conditions
precedent to the delivery of the first Drawdown Notice
in respect of the Facilities...........................................102
Part B - To be delivered prior to the delivery of the
first Drawdown Notice in respect of an Advance to be
used to refinance the Existing Lighthouse Facilities
or to pay costs and expenses incurred in connection
with the Lighthouse Acquisition........................................103
Part C - Documents and evidence to be delivered by
each additional Guarantor..............................................104
Part D - Documents and evidence to be delivered by an
Additional Borrower or Additional Overdraft Borrower...................105
Part E - Form of Director's Certificate regarding
financial assistance...................................................107
Schedule 5 Calculation of Additional Cost...................................108
Schedule 6 Form of Substitution Certificate Part A (single
transfers).................................................................111
Schedule 7 Permitted Encumbrances...........................................119
Schedule 8..................................................................120
Part A Borrower Accession Agreement.....................................120
Schedule 9 Permitted Guarantees.............................................124
Schedule 10 Borrower's Compliance Certificate...............................127
Schedule 11 Form of Guarantee to be given by new Guarantors.................128
Schedule 12 Permitted Acquisitions..........................................129
Schedule 13 Preference shares issued by (or to be issued)
by Lighthouse and its Subsidiaries as deferred consideration................131
Schedule 14 Non-Bank Cash Pooling Arrangements..............................133
THIS AGREEMENT is dated 4 July 2000 (as amended and restated pursuant to a
restructuring deed dated 19 April 2002 and made BETWEEN:
(1) CORDIANT COMMUNICATIONS GROUP PLC as the Parent;
(2) THE COMPANIES whose names, registered numbers (if any) and registered
offices are set out in part A of Schedule 1 as Original Borrowers and the
companies whose names, registered numbers (if any) and registered offices
are set out in part C of Schedule I as Original Overdraft Borrowers;
(3) THE BANK OF NEW YORK and HSBC INVESTMENT BANK PLC as Arrangers;
(4) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set out
in Schedule 2;
(5) HSBC INVESTMENT BANK PLC as Agent, Security Trustee and Common Security
Trustee;
(6) THE BANK OF NEW YORK as Swingline Bank; and
(7) HSBC BANK PLC as Overdraft Bank.
IT IS AGREED as follows:
1 Purpose and definitions
1.1 Purpose
This Agreement sets out the terms and conditions upon and subject to
which the Banks agree, according to their several obligations, to make
available to the Borrowers a revolving credit facility of up to
(pound)155,871,146.52 or its equivalent in Optional Currencies, the
Swingline Bank agrees to make available to the Swingline Borrower a
swingline facility (including a letter of credit facility) of up to
(pound)12,469,692 and the Overdraft Bank agrees to make available to
the Overdraft Borrowers an overdraft facility of up to
(pound)6,000,000, subject to an overall limit on all such facilities
of (pound)155,871,146.52, to be used to repay the Bridge Loan
Agreement and for general corporate purposes.
1.2 Definitions
In this Agreement, unless the context otherwise requires:
"Accountant's Report" means the agreed form financial report prepared
by KPMG dated 21 January 2002 for the purposes of the Restructuring
which is addressed to (among others) the Parent and the Bank Finance
Parties;
"Additional Borrower" means any wholly owned Subsidiary of the Parent
which becomes a Borrower in accordance with clause 18.11;
"Additional Cost" means, in relation to any period, a percentage
calculated for such period at an annual rate determined in accordance
with Schedule 5;
"Additional Overdraft Borrower" means any wholly owned Subsidiary of
the Parent which becomes an Overdraft Borrower in accordance with
clause 18.11;
"Advance" means each Revolving Credit Advance and each Swingline
Advance;
"Affiliate" means, in relation to any person, a Subsidiary or a
Holding Company of that person and any other Subsidiary of a Holding
Company of that person;
"Agent" means HSBC Investment Bank plc or such other person as may be
appointed agent for the Banks pursuant to clause 19.13;
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"Agreement in Principle" means the agreement dated 28 March 2002 made
between the Parent, the Arrangers, the Agent, the Security Trustee,
the Banks, the Swingline Bank, the Overdraft Bank, Cordiant Finance
Inc. as Issuer of the Notes and the Noteholders for the purpose (inter
alia) of agreeing the principle terms of the Restructuring;
"Amended and Restated Note Purchase Agreement" means the note purchase
agreements dated as of 5 April 2001 for $175,000,000 Guaranteed Senior
Notes due 2011 issued by the Parent (as parent guarantor) and Cordiant
Finance Inc. (as issuer) each as amended and restated into a single
agreement on or about the Restructuring Date;
"Annual Budget" means in respect of each Financial Year of the Group,
a budget for such Financial Year (broken down on a monthly basis) the
form (but riot the content) of which is in the agreed form each as
updated on a quarterly basis during each relevant Financial Year as
set out in clause 12.1.6(f);
"Appropriate Accounting Principles" means (a) the generally accepted
accounting principles, standards, practices and bases in the United
Kingdom as adopted in the Group's audited consolidated financial
statements for the Financial Year ended on 31 December 1998 and in the
Financial Model or (b) where any change in (a) has been agreed under
clause 12.2.14, such accounting principles, standards, practices and
bases as have been so agreed;
"Arranger" means each of The Bank of New York of One Canada Square,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ and HSBC investment Bank plc of Thames Exchange, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ and their respective successors
in title;
"Associated Person" means, in relation to any person, a person who is
(i) acting in concert (as defined in the City Code on Takeovers and
Mergers) with that person or (ii) a connected person (as defined in
section 839 of the Income and Corporation Taxes Act 1988) of that
person;
"Audited Financial Statements" means the audited financial statements
of the Group delivered, or as the case may be, to be delivered to the
Agent pursuant to clause 12.1.6(a) and the related reconciliation (if
any) delivered pursuant to clause 12.2.14 in respect of such financial
statements;
"Auditors" means KPMG Audit Plc or such other auditing firm of
international standing as may be approved by the board of directors of
the Parent (after prior consultation with the Agent) and which has
agreed to provide the Auditor's Reports;
"Auditors Report" means, in respect of any Financial Year, the report
from the Auditors delivered, or as the case may be, to be delivered
under clause 12.1.6(e);
"Authorised Officer" means that officer or officers of the Parent or
the Swingline Borrower authorised to sign Drawdown Notices, IJC
Applications and any other notices, requests or confirmations referred
to in this Agreement or relating to the facilities granted pursuant to
this Agreement;
"Availability Period" means, in respect of a Facility, the period from
the date of this Agreement and ending on 8 November 2004 or on such
earlier date (if any) on which the Commitments in respect of that
Facility are all reduced to zero under or pursuant to this Agreement;
"Bank Finance Documents" means the Credit Documents, the Security
Documents and any other documents which the Agent and the Parent agree
shall be Bank Finance Documents;
"Bank Finance Parties" means the Agent, the Arrangers, the Banks, the
Swingline Bank, the Overdraft Bank, the Security Trustee and the
Common Security Trustee;
"Banking Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and New York City, and:
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(a) in relation to any date for payment or purchase of euro, which is
also a TARGET Day; and
(b) in relation to any date for payment or purchase of an Optional
Currency other than euro, the principal financial centre in the
jurisdiction of the Optional Currency concerned;
"Banks" means the banks and financial institutions listed in Schedule
2 and includes their successors in title and Substitutes;
"Bid Bond" means a bid, performance or advance payment bond or
guarantee issued by a financial institution to a client or prospective
client of a member of the Group in connection with a contract for
which that member of the Group is bidding or which has been awarded to
that member of the Group;
"Borrowed Money" means Indebtedness in respect of (i) money borrowed
or raised and debit balances at banks, (ii) any amount raised pursuant
to any note purchase facility or the issue of bonds, notes,
debentures, loan stock or any similar instrument, (iii) any
counter-indemnity obligation in respect of a guarantee, indemnity,
bond, standby or documentary letter of credit or any other instrument
issued by a bank or financial institution, (iv) acceptance or
documentary credit facilities, (v) receivables sold or discounted
(otherwise than on a non-recourse basis), (vi) deferred payments for
assets or services acquired where the deferred payment is arranged
primarily as a method of raising finance or financing the acquisition
of the asset or services acquired (excluding credit granted in the
ordinary course of trading for a period not exceeding 120 days (or in
the case of Greece, Spain and Italy, not exceeding 180 days) and
deferred consideration payments in respect of acquisitions or
investments permitted in accordance with clause 12.2.6 and the
deferred consideration obligations set out in Schedule 13), (vii) the
capital element of Finance Leases and hire purchase contracts, (viii)
(except for the purposes of the definition of "Consolidated Gross
Borrowings" and clause 14.1.5) Derivatives Contracts, (ix) any
preference or other shares which are mandatorily redeemable or
redeemable at the option of the holder Thereof (other than the
preference shares listed in Schedule 13), (x) any other transaction
(including without limitation forward sale or purchase agreements
where the deferred payment is arranged primarily as a method of
raising finance or financing the acquisition of the asset or services
acquired) having the commercial effect of a borrowing or raising of
money or of any of (ii) to (ix) above and (x) guarantees in respect of
Indebtedness of any person falling within any of (i) to (x) above.
"Borrowers" means the Parent, the Original Borrowers, the Additional
Borrowers and/or the Swingline Borrower and/or the Overdraft
Borrowers, as the context requires;
"Borrower Accession Agreement" means a borrower accession agreement in
the form of part A of Schedule 8;
"Bridge Loan Agreement" means the loan agreement for a
(pound)20,000,000 term loan bridge facility dated 4 April 2002 and
made between the Parent, the Arrangers, the Agent, the Security
Trustee and the Banks;
"Capital Expenditure" means any expenditure which should be treated as
capital expenditure in the audited consolidated financial statements
of the Group in accordance with the Appropriate Accounting Principles;
"Capitalised Lease Obligations" means, with respect to any person, any
rental obligation (including, without limitation, any hire purchase or
payment obligation) which, under Appropriate Accounting Principles,
would be required to be treated as a Finance Lease or otherwise
capitalised on the books of such person, in accordance with such
principles;
"Cash Collateral Account" has the meaning given to it in the Common
Security Trust Deed;
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"Cash Pooling Arrangements" means arrangements for the pooling of the
balances of any two or more Group members' bank accounts pursuant to
which arrangements any such member of the Group grants a guarantee,
rights of set-off or any other Encumbrance or transfers cash between
the relevant bank accounts pursuant to an intra-Group loan;
"Code" means the United States Internal Revenue Code of 1986 as
amended from time to time, and the regulations promulgated and rulings
issued thereunder;
"Change of Control" occurs where a person (whether alone or together
with any Associated Person or Associated Persons) becomes the
beneficial owner of shares in the issued share capital of the Parent
carrying the right to exercise more than 50% of the votes exercisable
at a general meeting of the Parent or more than one half in nominal
value of the equity share capital of the Parent;
"Collateral Instruments" means notes, bills of exchange, certificates
of deposit and other negotiable and non-negotiable instruments,
guarantees, and any other documents or instruments which contain or
evidence an obligation (with or without security) to pay, discharge or
be responsible directly or indirectly for any Indebtedness or
liabilities of any Borrower or any other person liable and includes
Encumbrances;
"Commitment" means, in relation to a Bank and in respect of the
Revolving Credit Facility, at any relevant time the amount set
opposite its name in relation to the Revolving Credit Facility in
Schedule 2 and/or, in the case of a Substitute, the amount novated in
relation to the Revolving Credit Facility as specified in the relevant
Substitution Certificate, as reduced, in each case, by any relevant
term of this Agreement and so that, if at such time the Total
Commitments have been reduced to zero, references to a Bank's
Commitment shall be construed as a reference to that Bank's Commitment
immediately prior to such reduction to zero and, in relation to the
Swingline Bank and the Overdraft Bank, their obligations to make
available the Swingline Facility or the Overdraft Facility
respectively;
"Common Security Trust Deed" means the common security trust deed to
be entered into on or about the date of the Restructuring Deed between
(inter alia) the Common Security Trustee, the Parent, the Obligors,
the Noteholders and the Bank Finance Parties;
"Common Security Trustee" means HSBC Investment Bank plc and its
successors in title in its capacity as security trustee under the
Common Security Trust Deed and the lntercreditor Agreement or such
other person as is, from time to time, appointed as security trustee
pursuant to the Common Security Trust Deed;
"Compliance Certificate" means a certificate substantially in the form
set out in Schedule 10 as to the compliance or otherwise with the
Financial Covenants set out in clause 13.1;
"Consolidated EBITDA" means, in respect of any period, the
consolidated trading profits, but before:
(a) exceptional items and extraordinary items (each as separately
identified in the relevant profit and loss account);
(b) profits and losses on disposals of capital assets;
(c) amortisation of goodwill and other intangible assets;
(d) depreciation and impairment;
(e) Consolidated Gross Interest Expenditure and interest received or
receivable; and
(f) Taxes;
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of the Group for such period and after taking into account the
applicable share of any profit or loss of any joint venture or other
person which is not a Subsidiary of the Parent and after deducting (to
the extent otherwise included) profits (or adding back losses)
attributable to minority interests in members of the Group and after
deducting (to the extent not otherwise deducted) Property Payments;
"Consolidated Excess Cash Flow" means, in respect of any Financial
Year, the Consolidated EBITDA of the Group for such period:
after the addition of (if not already added):
(a) cash dividends received from investments in joint ventures and
other persons which are not Subsidiaries of the Parent (after
Taxes);
(b) Tax rebates received in cash which the Group is entitled to
retain; and
(c) any other non-cash items expensed in arriving at Consolidated
EBITDA,
after the deduction of (if not already deducted):
(i) payments in respect of Capital Expenditure;
(ii) payments of cash exceptional and extraordinary items;
(iii) Group Taxes paid;
(iv) any other non-cash items credited in arriving at Consolidated
EBITDA,
(v) Consolidated Net Interest Expenditure;
(vi) all cash dividends paid by the Parent and all cash dividends paid
in respect of minority interests in other members of the Group;
(vii) all repayments and prepayments of the Notes and all amounts
applied in repayment and cancellation of the Facilities (where
crediting cash to a Cash Collateral Account pending such
application is deemed to be such an actual prepayment) except for
mandatory repayments or prepayments of the Notes and the
Facilities under, and in accordance with, clause 8.6 to the
extent that the proceeds from the relevant transaction which give
rise to such repayments or prepayments are excluded in
determining Consolidated EBITDA for the period;
(viii) the principal amount of rental payments of Capitalised Lease
Obligations;
(ix) all cash consideration paid for Permitted Acquisitions
(including, without limitation, by way of earnouts or deferred
consideration); and
(x) all amounts paid in connection with employee share option
schemes,
and excluding the applicable share of any loss or profit of any joint
venture or other person which is not a Subsidiary of the Parent
included in arriving at Consolidated EBITDA,
in each case for, or paid during, such Financial Year and all
calculated on a consolidated basis;
"Consolidated Gross Borrowings" means the aggregate principal or
capital amount of all Borrowed Money incurred by the Group (including
any fixed or minimum premium payable on final repayment) plus the
aggregate principal element of Borrowed Money secured by any
Encumbrance over all or any part of the undertaking, property, assets,
rights or revenues of any member of the Group except that:
5
(a) moneys owing by one member of the Group to another member of the
Group shall not be taken into account;
(b) to avoid double counting, no guarantee of a liability which is
already taken into account shall itself be taken into account;
(c) no liability shall be taken into account more than once in any
computation;
(d) Consolidated Gross Borrowings expressed in or calculated by
reference to a currency other than Sterling shall be converted
into Sterling by reference to the rate of exchange used by the
Parent for the conversion of such currency in accordance with the
management policy of converting such amounts on a daily basis or,
if the relevant currency was not thereby involved, by reference
to the rate of exchange or approximate rate of exchange ruling on
such date and determined on such basis as the Agent may determine
or approve;
(e) the principal amount of Consolidated Gross Borrowings deemed to
be outstanding in relation to Finance Leases or hire purchase
agreements shall be the present value of the minimum lease or
hire payments discounted at the interest rate implicit in the
relevant lease or hire purchase agreement;
(f) Indebtedness in respect of cash collateralised guarantees issued
by a Bank or any of its associates on behalf of the Group to
media authorities shall not be taken into account;
(g) Indebtedness of the Group in respect of the guarantees issued by
banks on behalf of the Group to media authorities in Korea and
the United Kingdom shall not be taken into account; and
(h) debit balances at any bank or financial institution under the
cash management arrangements of the Group shall be taken into
account net of the credit balances of the Group at such bank or
financial institution to the extent that such credit balances are
subject to contractual set-off against such debit balances (both
before and after insolvency) under such cash management
arrangements;
"Consolidated Gross lnterest Expenditure" means, in respect of a
period, the aggregate amount (calculated on a consolidated basis) of
all continuing, regular or periodic costs, charges and expenses
accrued during that period in respect of Consolidated Gross
Borrowings, including:
(a) any acceptance commission paid or payable in respect of any bills
of exchange or other negotiable instruments;
(b) any initial issue discount allowed on the issue of debentures (to
the extent relating to that period when amortised over the term
of such debentures); and
(c) the interest component of rentals under Finance Leases,
but excluding:
(i) arrangement and other one-off fees (including the fees (and
interest thereon) referred to in clauses 9.1.8 and 9.1.9 and the
PIK Management Fee (as defined in the Amended and Restated Note
Purchase Agreement) in respect of the Notes pursuant to the terms
of the Amended and Restated Note Purchase Agreement), to the
extent relating to that period when amortised over the term of
the relevant Consolidated Gross Borrowings; and
(ii) amounts discounted for FRS12 or SSAP24 purposes to the extent
they are non-cash items;
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"Consolidated Net Interest Expenditure" means, in respect of a period,
the Consolidated Gross Interest Expenditure accrued for that period
net of credit interest accrued by the Group during such period;
"Consolidated Net Worth" means, as at the date of any determination
thereof, the consolidated total capital and reserves of the Group
shown in the latest consolidated balance sheet of the Group as
determined in accordance with the Appropriate Accounting Principles
and as adjusted by adding back any write off or amortisation of
acquisition goodwill and any acquisition goodwill debited to a
reserve;
"Contribution" means, in relation to a Bank, (i) the principal amount
of the Revolving Credit Advances owing to such Bank at any relevant
time (or, if the context requires, the Sterling Amount of such
Revolving Credit Advances) and (ii) the principal amount paid by such
Bank under the indemnities contained in clauses 6 and 7 for which it
has not been reimbursed at any relevant time by the relevant Borrower;
"Control Event" means (A) the announcement, by or on behalf of any
person Associated Person or Persons, in accordance with Rule 25 of the
City Code on Takeovers and Mergers, of a firm intention to make an
offer to the holders of the ordinary shares of the Parent or of a
proposal for a scheme of arrangement, which offer or proposal, if
accepted or approved (as the case may be) by the requisite number(s)
of holders and if the other conditions thereto were satisfied or
waived, would result in a Change of Control or (B) the making of an
offer to the holders of the ordinary shares of the Parent or the
proposing of a scheme of arrangement, which offer or proposal, if
accepted or approved (as the case may be) by the requisite number(s)
of holders and if the other conditions thereto were satisfied or
waived, would result in a Change of Control (but, for the avoidance of
doubt, "Control Event" shall not include any preliminary approach or
negotiations by any person or group of person to or with the Parent in
respect of any such offer);
"Credit Documents" means this Agreement, the Restructuring Deed, the
letters entered into from time to time by the Parent setting out the
terms of any fees to be paid by the Parent to a Bank Finance Party in
connection with the Facilities, the Substitution Certificates, the
Borrower Accession Agreements, the Overdraft Borrower Accession
Agreements and any other documentation from time to time entered into
between the Overdraft Borrowers and the Overdraft Bank relating to the
Overdraft Facility;
"D" means Diamond Ad Ltd;
"D Acquisition" means the acquisition of D, a company incorporated in
the Republic of Korea;
"D Group" means D and its Subsidiaries as at the date of this
Agreement;
"Dangerous Substance" means any radioactive emissions, noise and any
natural or artificial substance (in whatever form) the generation,
transportation, storage, treatment, use or disposal of which (whether
alone or in combination with any other substance) gives rise to a risk
of causing harm to man or any other living organism or damaging the
Environment or public health or welfare, including (without
limitation) any controlled, special, hazardous, toxic, radioactive or
dangerous waste;
"Default" means any Event of Default or any event or circumstance
which would, upon the giving of a notice by the Agent and/or the
expiry of the relevant period and/or the fulfilment of any other
condition (in each case as specified in clause 14.1), constitute an
Event of Default;
"Derivatives Contract" means a contract, agreement or transaction
which is:
(a) a rate swap, basis swap, commodity swap, forward rate
transaction, commodity option, equity (or equity or other index)
swap or option, bond option, interest rate option, foreign
exchange transaction, cap, collar or floor, currency swap,
currency option or any other similar transaction; and/or
7
(b) any combination of such transactions,
in each case, whether on-exchange or otherwise;
"Dollars" and "$" mean the lawful currency of the United States of
America and in respect of all payments to be made under this Agreement
in Dollars mean funds which are for same day settlement in the New
York Clearing House lnterbank Payments System (or such other U.S.
dollar funds as may at the relevant time be customary for the
settlement of International banking transactions denominated in U.S.
dollars);
"Drawdown Date" means the date, being a Banking Day falling within the
Availability Period of the relevant Facility, on which an Advance is
or is to be drawn down;
"Drawdown Notice" means a notice in the form or substantially in the
form of part A of Schedule 3, duly completed with particulars of the
relevant Advance;
"Encumbrance" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment by way of security, trust
arrangement for the purpose of providing security or other security
interest of any kind securing any obligation of any person or any
other arrangement having the effect of conferring rights of set-off
and includes any agreement to create any of the foregoing;
"Environment" means all, or any of, the air (including, without
limitation, the air within buildings and the air within other natural
or man-made structures above or below ground), water (including,
without limitation, ground and surface water) and land (including,
without limitation, buildings, surface and sub-surface soil);
"Environmental Claim" means any claim by any person:
(a) in respect of any loss or liability suffered or incurred by that
person as a result of or in connection with any violation of
Environmental Law; or
(b) that arises as a result of or in connection with Environmental
Contamination and that could give rise to any remedy or penalty
(whether interim or final) that may be enforced or assessed by
private or public legal action or administrative order or
proceedings;
"Environmental Contamination" means each of the following and their
consequences:
(a) any release, discharge, emission, leakage or spillage of any
Dangerous Substance at or from any site owned, occupied or used
by any member of the Group into any part of the Environment; or
(b) any accident, fire, explosion or sudden event at any site owned,
occupied or used by any member of the Group which is directly or
indirectly caused by or attributable to any Dangerous Substance;
or
(c) any other pollution of the Environment at or from any site owned,
occupied or used by any member of the Group;
"Environmental Law" means all laws (including, without limitation,
common law), regulations, directives, codes of practice, circulars,
guidance notices and the like having legal effect concerning the
protection of human health, the Environment, the conditions of the
work place or the generation, transportation, storage, treatment or
disposal of Dangerous Substances and in the case of codes of practice,
circulars, guidance notices and the like with which it is customary
for persons carrying on a similar business to the Group to comply
with;
"Environmental Licence" means any authorisation required by any
Environmental Law;
"equity share capital" has the meaning given to it in Section 744 of
the Companies ▇▇▇ ▇▇▇▇;
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"ERISA" means the Employee Retirement Income Security Act of 1974 of
the United States of America, as amended from time to time, and the
regulations promulgated and rulings issued thereunder;
"ERISA Affiliate" means any corporation or trade or business which for
purposes of Title IV of ERISA is a member of the same controlled group
as any member of the Group, or is under common control with any member
of the Group, within the meaning of Section 414(b) or (c) of the Code
and the regulations promulgated and rulings issued thereunder;
"ERISA Event" means (i)(A) any reportable event, as defined in Section
4043(c) of ERISA and the regulations issued thereunder, with respect
to a 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 paragraph 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 4001(a)(13) of ERISA (without regard to
subsection (2) of such Section) are met with respect to a contributing
sponsor, as defined in Section 4001(aXl3) of ERISA, of a 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
Plan within the following 30 days; (ii) the filing of a notice of
intent to terminate any plan under Section 4041(a)(2) of ERISA in a
distress termination under Section 4041(c) of ERISA; (iii) the
institution by PBGC of proceedings under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
Plan; and (iv) an engagement in a non-exempt prohibited transaction
within the meaning of Section 4975 of the Code or Section 406 of ERISA
with respect to any plan, which upon the occurrence of any of the
events described in paragraphs (i) to (iv) (inclusive) above would
reasonably be expected to result in a material liability of any member
of the Group or any ERISA Affiliate;
"EURIBOR" means in relation to a particular period:
(a) the percentage rate per annum which is sponsored by the European
Banking Federation and which appears on Telerate page 248 (or
such other page as may replace such page 248 on such system or on
any other system of the information vendor for the time being
designated by the Federation de l'Union Europeene to be the
official collector, calculator and distributor of the Euro
Interbank Offered Rate); or
(b) if no such rate appears on that Telerate Screen, the arithmetic
mean (founded upward, if necessary, to five decimal places) of
the rates as supplied to the Agent at its request, quoted by the
EURIBOR Reference Banks to leading banks in the interbank market
for euro of any participating member state(s),
at or about 11:00 am Central European Time on the Quotation Date of
such period for the offering of deposits in euro in an amount
approximately equal to the amount in relation to which EURIBOR is to
be determined for a period equivalent to such period;
"EURIBOR Reference Banks" means the principal London offices of HSBC
Bank plc and The Bank of New York and/or any other Banks appointed as
such pursuant to clause 19.15 and their respective successors in
title;
"euro" means the single currency of Participating Member States of the
European Union;
"Euro-Zone" means each country which is a Participating Member State;
"Event of Default" means any of the events or circumstances described
in clause 14.1;
"Expiry Date" means, in relation to a Swingline Letter of Credit, the
date expressed by the terms of such Swingline Letter of Credit to be
the date upon which such Swingline Letter of Credit expires;
9
"External Refinancing" means the borrowing or raising of Borrowed
Money (including, without limitation, any public or private issue of
debt securities) by any member of the Group with a view, inter alia,
to the repayment and cancellation of any amount of any of the
Facilities;
"Facilities" means the Revolving Credit Facility, the Swingline
Facility and the Overdraft Facility and (as the context requires)
"Facility" means any of them;
"Facilities Group" means Facilities Group Limited, a company
incorporated in England and Wales with registered no. 00294029;
"Facilities Group Joint Venture Agreement" means the Joint Venture
Agreement dated 11 December 1997 between the Parent and Publicis Group
S.A. relating to Facilities Group;
"Federal Funds Rate" means, in relation to a Swingline Advance and a
day in a Swingline Term relating thereto or in relation to an unpaid
sum in respect of a Swingline Advance and a day on which any sum
remains outstanding, the rate per annum equal to the weighted average
of the rates on overnight Federal funds transactions with members of
the United States Federal Reserve System arranged by Federal funds
brokers, as published for that day (or if such a day is not a New York
Banking Day, for the immediately preceding New York Banking Day) by
the Federal Reserve Bank of New York or, if such a rate is not so
published for any day which is a New York Banking Day, the average of
the quotations for that day for such transactions received by the
Swingline Bank from three Federal funds brokers of recognised standing
selected by the Swingline Bank in consultation with the Borrowers;
"Finance Documents" means the Bank Finance Documents and the Notes
Finance Documents;
"Finance Lease" means a lease treated as a finance lease pursuant to
the Appropriate Accounting Principles (including SSAP 21);
"Finance Parties" means the Bank Finance Parties and the Noteholders;
"Financial Covenants" means the financial undertakings in clause 13.1;
"Financial Covenants test date" means any date upon which the
Financial Covenants are, or are to be tested, pursuant to clause 13;
"Financial Definitions" means the definitions of Borrowed Money,
Capital Expenditure, Capitalised Lease Obligations, Consolidated
EBITDA, Consolidated Gross Borrowings, Consolidated Gross Interest
Expenditure, Consolidated Net Interest Expenditure, Consolidated Net
Worth, Finance Leases, Property Payments and Taxes;
"Financial Model" means the agreed form financial model for the Group
prepared by the Parent to be used by the Finance Parties for the
purposes of the Restructuring;
"Financial Year" means each fiscal period for the Group beginning on
1st January and ending on 31 December in that year;
"Flotation" means the inclusion of any part of the share capital of
any member of the Group (other than the Parent) or Zenith (or any of
its Subsidiaries) in the Official List of the UK Listing Authority or
the grant of permission to deal in the same in the Alternative
Investment Market or the European Association of Dealers Automated
Quotation or on any other recognised investment exchange (as that term
is used in the Financial Services Act 1986) or in or on any other
exchange or recognised market replacing any of the same or on any
other exchange or recognised market in any country;
"Funders" means the Banks, the Swingline Bank and the Overdraft Bank;
10
"Funding Cost" means (i) in respect of Revolving Credit Advances made,
or to be made, in euro, EURIBOR or (ii) in respect of Revolving Credit
Advances made, or to be made, in Sterling or any Optional Currency
(other than euro), LIBOR;
"Group" means the Parent and its Subsidiaries from time to time and
"member of the Group" means any one of them;
"Group Structure Charts" means the charts, in the agreed form, which
set out the structure of the Group;
"Guarantee" means an Original Guarantee, a New Guarantee or any other
guarantee which may be entered into from time to time in favour of the
Common Security Trustee in the agreed form or in a form acceptable to
the Agent (acting reasonably) including those guarantees to be entered
into under clause 12.1.19 (and "Guarantees" shall be construed
accordingly);
"Guarantor Group" means those members of the Group which are
Guarantors and "member of the Guarantor Group" means any of them;
"Guarantors" means the (a) Original Guarantors, (b) the New Guarantors
and (c) any other member of the Group which may from time to time
enter into a Guarantee but only if (i) it has issued a guarantee in
respect of the amounts from time to time expressed to be outstanding
under the Finance Documents and, if it is incorporated or formed in
England and Wales, it has given a fixed and floating charge over all
or substantially all of its assets and undertakings, in each case in
accordance with this Agreement and the principles in the Security
Memorandum, and (ii) an Encumbrance over the shares or other ownership
interests in such person has been granted in favour of the Common
Security Trustee for the benefit of the Finance Parties in accordance
with this Agreement and the Security Memorandum;
"Hedging Strategy" means the strategy for interest rate protection
arrangements and foreign exchange protection arrangements set out in
the Hedging Strategy Letter;
"Hedging Strategy Letter" means the letter from the Parent to the
Agent relating to hedging dated 14 February 2001;
"Holding Company" means, in relation to a person, an entity of which
that person is a Subsidiary;
"Indebtedness" means any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or
future, actual or contingent;
"Index of Management Discussion and Analysis" means the agreed form
index setting out the type of discussion and analysis of the financial
statements that will be provided with the Monthly Management Accounts
and Quarterly Management Accounts;
"Information Disclosure for Lenders" means the bundle of papers
entitled the lnformation Disclosure for Lenders dated 14 December 2001
distributed on behalf of the Parent to the Banks in relation to the
Restructuring;
"Information Memorandum" means each version of the Information
Memorandum distributed by the Arrangers at the request of the Parent
in connection with this Agreement;
"Information Package" means the Information Disclosure for Lenders,
the Accountant's Report, the Financial Model, the Group Structure
Charts, the Guarantor Group Revenue & EBITDA Analysis (as at 31
January 2002) dated 1 February 2002, the Earnout Projections - 2002 to
2004 (as at 31 December 2001) dated 4 February 2002, the Customer
Memorandum dated 31 January 2002 and the presentation documentation
provided by the Parent with its presentation on or about 19 March
2002;
"Intellectual Property Rights" means any patent, trade ▇▇▇▇, service
▇▇▇▇, registered design, trade name or copyright required to carry on
the business of any member of the Group;
11
"Intercreditor Agreement" means the intercreditor agreement entered
into on or about the date of the Restructuring Deed between, among
others, the Obligors and the Finance Parties;
"L/C Application" means a request from the Swingline Borrower to open
a Swingline Letter of Credit, such notice to be in the form or
substantially in the form of part B of Schedule 3;
"L/C Issue Date" means the date, being a Banking Day falling within
the Availability Period, when a Swingline Letter of Credit is or is to
be issued;
"LIBOR" means, in relation to a particular period, the rate for
deposits of the relevant currency for a period equivalent to such
period at or about 11 a.m. (London time) on the Quotation Date for
such period as displayed on Telerate page 3750 (or, as the case may
be, 3740) (British Banker's Association Interest Settlement Rates) (or
such other page as may replace such page 3750 (or, as the case may be,
3740) on such system or on any other system of the information vendor
for the time being designated by the British Bankers' Association to
calculate the BBA Interest Settlement Rate (as defined in British
Bankers' Association's Recommended Terms and Conditions ("BBAIRS"
terms) dated August, 1985)), provided that if on such date no such
rate is so displayed, LIBOR for such period shall be the arithmetic
mean (rounded upward if necessary to five decimal places) of the rates
as supplied to the Agent at its request quoted by the Reference Banks
to leading banks in the London Interbank Market for deposits of the
relevant currency in an amount approximately equal to the amount in
relation to which LIBOR is to be determined for a period equivalent to
such period at or about 11 a.m. on the Quotation Date for such period;
"LIBOR Reference Banks" means the principal London offices of HSBC
Bank plc and The Bank of New York and/or any other Banks appointed as
such pursuant to clause 19.15 and their respective successors in
title;
"Lighthouse" means Lighthouse Global Network Inc., a company
incorporated under the laws of the State of Delaware;
"Lighthouse Acquisition" means the acquisition by the Parent of
Lighthouse by means of a merger involving a share-for-share exchange
upon substantially the terms described in the Press Announcement;
"Majority Banks" means, at any relevant time, Banks (a) the aggregate
of whose Contributions in respect of the Revolving Credit Facility
exceeds 66 2/3 per cent of the Revolving Credit Advances or (b) (if no
Revolving Credit Advances are outstanding under this Agreement) the
aggregate of whose Commitments exceeds 66 2/3 per cent of the Total
Commitments (or, if the Total Commitments have been reduced to zero,
66 2/3 per cent. of the Total Commitments immediately prior to such
reduction);
"Margin" means 3.25% per annum;
"Material Adverse Effect" is a reference to any effect, event or
circumstance (on its own or in combination with other effect, events
or circumstances):
(a) which is, or is reasonably likely to be, materially adverse to
(i) the ability of any Obligor to perform any of its obligations
under any of the Bank Finance Documents or (ii) the business,
assets or financial condition of the Group taken as a whole; or
(b) which results in, or is reasonably likely to result in, any of
the Bank Finance Documents not being legal, valid and binding on,
and, enforceable substantially in accordance with their terms
against, any party thereto;
"Material Subsidiary" means any member of the Group which is party to
any Bank Finance Documents or is a party to the Amended and Restated
Note Purchase Agreement or a "Subsidiary Guarantor" (as defined in the
Amended and Restated Note Purchase Agreement) or any other Subsidiary
of the Parent:
12
(a) whose EBITDA, together with that of its Subsidiaries, is equal to
or exceeds 3 per cent. of the Consolidated EBITDA of the Group
(where EBITDA shall be construed appropriately in respect of such
member of the Group (and its Subsidiaries) by reference to the
definition of Consolidated EBITDA); or
(b) whose gross revenues, together with those of its Subsidiaries, is
equal to or exceeds 3 per cent. of the consolidated gross
revenues of the Group; or
(c) to which has been transferred (whether by one transaction or a
series of transactions, related or not) all or substantially all
of the assets of another member of the Group which, immediately
prior to that transaction or any of the transactions in that
series, was a Material Subsidiary as determined under paragraphs
(a) or (b) above; or
(d) which is a holding company of a Material Subsidiary determined
under paragraphs (a) to (c) above,
as determined by reference to the then latest Quarterly Management
Accounts delivered under clause 12.1.6(b), the latest Audited
Financial Statements delivered under clause 12.1.6(a) and such other
financial statements of the relevant members of the Group (prepared on
the same basis as the financial statements delivered in accordance
with clause 12.1.6 in respect of the same period to which such other
financial statements relate) as are necessary for the relevant
Compliance Certificate or Auditors' Report to be duly completed and
delivered in accordance with clauses 12.1.6(d) and 12.1.6(e), provided
that (i) in the case of a member of the Group acquired after the end
of the period to which the then latest financial statements of the
Group delivered under clause 12.1.6(a) or (b) relate, the reference to
such then latest financial statements shall (until financial
statements have been delivered under such clauses for the period in
which such acquisition is made) be deemed to be a reference to a
consolidation (in accordance with the Appropriate Accounting
Principles) of such then latest financial statements and the latest
financial statements of such acquired member of the Group for such
period and (ii) a report of the Auditors to the Bank Finance Parties
that a Subsidiary of the Parent is or is not a Material Subsidiary (in
accordance with this definition) when delivered (as part of the
Auditors' Report or otherwise) shall be conclusive and binding on the
parties hereto;
"month" or "months" means a period beginning in one calendar month and
ending in the relevant later calendar month on the day numerically
corresponding to the day of the calendar month in which it started,
provided that (i) if the period started on the last Banking Day in a
calendar month or if there is no such numerically corresponding day,
it shall end on the last Banking Day in such later calendar month and
(ii) if such numerically corresponding day is not a Banking Day, the
period shall end on the next following Banking Day in such later
calendar month but if there is no such Banking Day it shall end on the
preceding Banking Day and "monthly" shall be construed accordingly;
"Monthly Management Accounts" means the monthly management accounts of
the Group delivered or to be delivered, to the Agent pursuant to
clause 12.1.6(c);
"M.O.U." means the Memorandum of Understanding between Hyundai
Merchant Marine Co. Limited and ▇▇. ▇▇▇▇ Hun ▇▇▇▇▇, as sellers, and
the Parent relating to the D Acquisition;
"Multiemployer Plan" shall have the meaning set out in section
4001(a)(3) of ERISA;
"Net Derivatives Liability" means, at any time, the net liability (if
any) at such time of the members of the Group taken as a whole in
respect of Derivatives Contracts determined by reference to the
amounts (as determined by the Agent) which would be payable or
receivable by the members of the Group pursuant to the terms of such
Derivatives Contracts if such Derivatives Contracts were terminated at
such time;
13
"Net Proceeds" means, in respect of a disposal of an asset or any of
the matters referred to in clause 8.6.3, the full amount of proceeds
received by a member of the Group in respect thereof less the
reasonable costs incurred by the relevant member of the Group in
relation thereto for which purpose (a) such proceeds shall be taken to
include, in addition to consideration directly attributable to the
disposal of such asset or such matter, any amount owing to and set-off
by the relevant purchaser or other relevant third party, (b) any
proceeds received otherwise than in cash will be treated as Net
Proceeds only upon the subsequent realisation of cash from such
proceeds and (c) "reasonable costs of disposal incurred by the
relevant member of the Group" includes reasonable legal fees, agents'
commissions, auditors' fees, registration fees and Taxes paid or
properly provided for in accordance with the Appropriate Accounting
Principles (where such Tax is likely to become payable within the
following 18 months), or, in the case of any of the matters referred
to in clause 8.6.3(a) or (d) only, where the Parent demonstrates to
the reasonable satisfaction of the Agent that such Tax will become
payable after such period;
"New Guarantees" means the various guarantees entered into by members
of the Group in satisfaction of the relevant conditions precedent to
the Restructuring Deed;
"New Guarantors" means those members of the Group who have entered
into New Guarantees;
"New York Banking Day" means a day (other than Saturday or Sunday) on
which banks are open for business in New York City;
"Non-Guarantor Group" means those members of the Group which are not
members of the Guarantor Group and "member of the Non-Guarantor Group"
means any one of them;
"Noteholders" means, at any time, the persons entitled to the benefit
of the Notes;
"Notes" means the 7.61% Guarantee Senior Notes due 2011 issued from
time to time pursuant to the terms of the Amended and Restated Note
Purchase Agreement;
"Notes Finance Documents" means the Notes, the Amended and Restated
Note Purchase Agreement, the Parent Guarantee (as defined in the
Amended and Restated Note Purchase Agreement), the Subsidiary
Guarantees (as defined in the Amended and Restated Note Purchase
Agreement) and the Security Documents to the extent that they secure
the obligations owing to the Noteholders under the Note Finance
Documents;
"Obligors" means the Borrowers, the Guarantors and any other party
(other than any Bank Finance Party or any of the Noteholders) to a
Bank Finance Document and "Obligor" means any one of them;
"Optional Currency" means any currency, other than Sterling, which is
freely transferable, freely convertible into Sterling and dealt in on
the London Interbank Market or the London foreign exchange market;
"Original Borrowers" means those companies listed as such in part A of
Schedule 1;
"Original Guarantees" means the guarantees entered into by the
Original Guarantors prior to the date of the Restructuring Deed in
respect of the amounts from time to time expressed to be outstanding
under this Agreement;
"Original Guarantors" means those companies listed as such in part B
of Schedule 1;
"Original Overdraft Borrowers" means those companies listed as such in
part C of Schedule 1;
"Outstanding L/C Liability" means, in relation to a Swingline Letter
of Credit issued or to be issued at any time, the maximum aggregate
amount of the liability of the Swingline Bank under such Swingline
Letter of Credit at such time;
14
"Overdraft Bank" means HSBC Bank plc of ▇▇-▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
and its successors in title;
"Overdraft Borrower Accession Agreement" means an accession agreement
in the form of part B of Schedule 8;
"Overdraft Borrowers" means the Original Overdraft Borrowers and the
Additional Overdraft Borrowers;
"Overdraft Facility" means an overdraft facility of up to
(pound)6,000,000 made available to the Overdraft Borrowers by the
Overdraft Bank pursuant to clause 2.1.3;
"Overdraft Facility Amount" means, at any time,(pound)6,000,000 as
reduced by any relevant provision of this Agreement;
"Parent" means Cordiant Communications Group plc (Company number
1320869), whose registered office is at ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇ ▇▇▇;
"Participating Member State" means a member state of the European
Union that has adopted or adopts the single currency in accordance
with the Treaty;
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to all or any of its functions under ERISA;
"Permitted Acquisitions" means those acquisitions set out in Schedule
12;
"Permitted Encumbrances" means:
(a) any Encumbrance created pursuant to the terms of the Bank Finance
Documents;
(b) any right of set-off arising by operation of law in the ordinary
course of trading;
(c) any Encumbrance created in favour of a bank over the relevant
bank accounts in connection with any bona fide cash management
and/or netting arrangements for the Group, provided that such
Encumbrance is granted in accordance with clauses 12.2.6(b),
12.1.23, 12.2.2 and 12.2.16;
(d) any lien arising with respect to Taxes of the Group;
(e) any Encumbrance which the Agent (acting on the instructions of
the Majority Banks) has at any time in writing agreed shall be a
Permitted Encumbrance;
(f) the Encumbrances listed in Schedule 7 securing the amount set
opposite the relevant Encumbrance in Schedule 7 but not any
increase in such amount;
(g) any Encumbrance given by a member of the Group in connection with
bona fide arrangements for the maintenance of media accreditation
of any member of the Group provided that such members of the
Group purchase media (and give such Encumbrances) only in
accordance with normal industry practice;
(h) any Encumbrance on assets acquired after the date of this
Agreement or on assets of a company which becomes a Subsidiary
after the date of this Agreement (which Encumbrances were in
existence at the date of acquisition or such company becoming a
Subsidiary, but were not created in contemplation thereof) but in
each case only if the maximum amount thereby permitted from time
to time to be secured has not been increased on account of, or
since the date of, the acquisition of such asset or the date on
which such company becomes a Subsidiary and provided that the
same is discharged in full within 30 days of the date of the
relevant acquisition or such company becoming a Subsidiary;
15
(i) any Encumbrance (a "New Encumbrance") created by any member of
the Group in substitution for any Encumbrance referred to in
paragraph (f) above (an "Existing Encumbrance") granted by such
member of the Group provided that (i) such Existing Encumbrance
is irrevocably and unconditionally discharged no later than the
time of creation of the New Encumbrance, (ii) the New Encumbrance
relates only to the same assets as the Existing Encumbrance and
(iii) the Indebtedness secured by the New Encumbrance does not
exceed the Indebtedness secured by the Existing Encumbrance;
(j) any Encumbrance created in favour of a plaintiff or a defendant
in any action, or the court or tribunal before which such action
is brought, as security for costs for expenses where any member
of the Group is prosecuting or defending such action in the bona
fide interest of such member and/or any other member of the Group
provided that the total amount secured does not exceed
(pound)500,000;
(k) the trust established in accordance with the terms of the letters
dated 21st August 1997 to beneficiaries of the support agreement
dated 1st October 1987 and made between the Parent and ▇▇▇ ▇▇▇▇▇
Worldwide Inc.;
(l) liens arising by operation of law or by way of contract in the
ordinary course of business to the extent that the same would
otherwise arise by operation of law and are not incurred in
connection with the raising of finance;
(m) any Encumbrance constituted by a Finance Lease permitted under
clause 12.2.2;
(n) any pledge of documents of title relevant to the asset as
security for the liabilities of a member of the Group in respect
of a documentary credit facility taken out in the ordinary course
of business;
(o) any retention of title to goods supplied to any member of the
Group where that retention is required by the supplier in the
ordinary course of its trading activities and on customary terms;
(p) any Encumbrance granted by a member of the Group over any rent
deposits as security for rental payments to be made by such
member of the Group under or pursuant to any lease of premises
used for its business; and
(q) any Encumbrance not otherwise permitted pursuant to paragraphs
(a) to (p) above (inclusive) and securing Indebtedness in
aggregate not exceeding(pound)2,000,000;
"Permitted Guarantees" means:
(a) any guarantee created pursuant to the terms of the Bank Finance
Documents;
(b) any guarantee which the Agent (acting on the instructions of the
Majority Banks) has at any time in writing agreed shall be a
Permitted Guarantee;
(c) any guarantee given by a member of the Group of the obligations
of any member of the Guarantor Group, any guarantee given by a
member of the Non-Guarantor Group of the obligations of another
member of the Non-Guarantor Group and any guarantee permitted
under clause 12.2.6(b);
(d) any guarantee given by any member of the Group listed in Schedule
9 guaranteeing the amount set opposite the relevant guarantee in
Schedule 9 but not any increase in such amount;
16
(e) any guarantee given by a company which becomes a Subsidiary after
the date of this Agreement (which guarantee was in existence at
the date such company becomes a Subsidiary and was not created in
contemplation thereof) but only if the maximum amount guaranteed
has not been increased on account of or since the date on which
such company becomes a Subsidiary and provided that the same is
discharged within 30 days of the relevant company becoming a
Subsidiary;
(f) any guarantee given by a company in the Group in favour of a bank
in connection with any bona fide cash management and/or netting
arrangements for the Group, provided that such guarantee is
granted in accordance with clauses 12.2.6(b), 12.1.23, 12.2.2 and
12.2.16;
(g) any guarantee given by a member of the Group in connection with
bona fide arrangements for the maintenance of media accreditation
of any member of the Group provided that such members of the
Group purchase media (and give such guarantees) only in
accordance with normal industry practice;
(h) any indemnity given by a member of the Group required by a bank
as part of its normal terms and conditions for transacting
business indemnifying such bank against costs and losses it may
sustain as a consequence of accepting telephone or facsimile
instructions from such member of the Group;
(i) any counter indemnity given by any member of the Group in
connection with a Bid Bond; and
(j) any guarantee in addition to that permitted by paragraphs (a) to
(i) that is permitted pursuant to clause 12.2.2(l);
"Plan" means an employee pension benefit plan as defined in section
3(2) of ERISA established or maintained by any member of the Group or
any ERISA Affiliate or with respect to which any member of the Group
has any liability (including any contingent, potential or secondary
liability under Title IV of ERISA or otherwise) and which is covered
by Title IV of ERISA other than a Muliemployer Plan;
"Press Announcement" means a press announcement in the agreed form
relating to the Lighthouse Acquisition;
"Property Payments" means the aggregate amount of (i) the payments
made by any member of the Group pursuant to leases of unoccupied land
or buildings of which such member of the Group is a lessor and (ii)
the amount by which payments under a lease of land or buildings of
which a member of the Group is a lessee exceeds the amount of rental
received by such member of the Group in respect of such land or
buildings from any other person;
"Qualifying Bank" means a person which on any date on which interest
is payable under this Facility is beneficially entitled to the
interest payable to it under this Facility and is;
(a) in relation to any advance to a person resident in the United
Kingdom, a UK Lender or a Treaty Lender; or
(b) in relation to any advance to a person resident in the United
States, a US Lender or a Treaty Lender; or
(c) in relation to an advance to any other person, any person;
"Quarter" means, in respect of each Financial Year, each of the
periods (each comprising three successive accounting periods) ending
on or about 31 March, 30 June, 30 September and 31 December in such
Financial Year;
17
"Quarterly Management Accounts" means the quarterly management
accounts of the Group delivered, or as the case may be, to be
delivered to the Agent pursuant to clause 12.1.6(b) and the related
reconciliation (if any) delivered pursuant to clause 12.2.14 in
respect of such financial statements;
"Quotation Date" means, in relation to a Revolving Credit Term or
other period for which LIBOR or EURIBOR is to be determined, the date
on which quotations are customarily provided by leading banks in the
London lnterbank Market for deposits in the relevant currency for
delivery on the first day of that Revolving Credit Term or other
period provided that, if for any such period quotations would
customarily be given on more than one date, the Quotation Date for
such period shall be the last of those dates;
"Reference Banks" means the EURIBOR Reference Banks and/or the LIBOR
Reference Banks as the context may require;
"Regulation D Costs" means, in relation to its participation in an
Advance made to a US Borrower (or deposits maintained by a Bank to
fund that participation), the amount (if any) certified by a Bank to
be the cost to it of complying with Regulation D of the Board of
Governors of the Federal Reserve System, or any successor (or any
similar reserve requirements in respect of its participation or those
deposits);
"Repayment Date" means, in relation to an Advance, the last day of its
Term;
"Responsible Officer" means any Senior Financial Officer and any other
officer of a Borrower with responsibility for the administration of
the relevant portion of this Agreement;
"Restructuring" means the amendment of the terms and conditions of
this Agreement and the Notes pursuant to the Restructuring Deed and
the Amended and Restated Note Purchase Agreement;
"Restructuring Date" has the meaning given to it in the Restructuring
Deed;
"Restructuring Deed" means the restructuring deed dated 19 April 2002
made between the Parent, the Borrowers, the Original Guarantors, the
Arrangers, the Banks, the Agent, the Security Trustee, the Common
Security Trustee, the Swingline Bank and the Overdraft Bank pursuant
to which this Agreement was amended and restated;
"Revolving Credit Advance" means (i) each borrowing of a portion of
the Commitments under the Revolving Credit Facility by a Borrower or
(ii) (as the context may require) the principal amount of such
borrowing for the time being outstanding;
"Revolving Credit Facility" means the revolving credit facility
granted by the Banks in accordance with clause 2.1.1;
"Revolving Credit Facility Amount" means (pound)155,871,146.52 reduced
by (i) the Swingline Minimum, (ii) the Revolving Credit Facility
Decrease, (iii) the Overdraft Facility Amount, as further reduced by
any relevant provision of this Agreement;
"Revolving Credit Facility Availability Period" means the period from
the date of this Agreement and ending on 8 November 2004 or on such
earlier date (if any) on which the Swingline Facility, the Overdraft
Facility, and the Total Commitments are all reduced to zero under or
pursuant to this Agreement;
"Revolving Credit Facility Decrease" means the amount by which the
total of the Sterling Amount of all Swingline Advances outstanding or
to be made on a particular day together with the Sterling Amount of
the Outstanding L/C Liability in respect of all Swingline Letters of
Credit outstanding or to be issued on a particular day exceeds the
Swingline Minimum;
18
"Revolving Credit Term" means, in relation to a Revolving Credit
Advance, the period for which that Revolving Credit Advance is, or is
to be, borrowed, as specified in the Drawdown Notice for such
Revolving Credit Advance;
"Security Documents" means (a) the Guarantees, (b) the Security Trust
Deed, (c) the Common Security Trust Deed (and any accession documents
entered into in relation thereto), (d) the Existing Parent Guarantee
(as defined in the Amended and Restated Note Purchase Agreement), (e)
the Existing Subsidiary Guarantees (as defined in the Amended and
Restated Note Purchase Agreement), (f) the various security documents
entered into by members of the Group in satisfaction of the relevant
conditions precedent to the Restructuring Deed, (g) any other
guarantee or Encumbrance provided from time to time to guarantee
and/or to secure the obligations owing to the Finance Parties under
any Finance Document (whether or not also in respect of any other
Indebtedness), (h) the Intercreditor Agreement (and any accession
documents entered into in relation thereto) and (i) (in so far as it
relates to the Security Trustee and the Common Security Trustee) this
Agreement;
"Security Memorandum" means the security principles memorandum in the
agreed form entered into on or about the Restructuring Date between
the Parent, the Agent, the Noteholders and the Common Security
Trustee;
"Security Trust Deed" means a security trust deed in the agreed form
originally dated 30 August 2000 between the Parent, the Original
Borrowers, the Original Overdraft Borrowers, the Original Guarantors,
the Arrangers, the Banks, the Swingline Bank, the Overdraft Bank, the
Agent and the Security Trustee;
"Security Trustee" means HSBC Investment Bank plc and its successors
in title in its capacity as security trustee for the purposes of the
Original Guarantees or such other person as is appointed as security
trustee pursuant to the Security Trust Deed;
"Senior Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of a Borrower;
"Settlement Amount" means the amount payable by the Swingline Bank to
the beneficiary under a Swingline Letter of Credit;
"Settlement Date" means the date on which payment is due to the
beneficiary in respect of a Swingline Letter of Credit;
"Sterling" and "(pouind)" mean the lawful currency for the time being
of the United Kingdom and in respect of all payments to be made under
this Agreement in Sterling mean immediately available, freely
transferable cleared funds;
"Sterling Amount" means (a) in relation to an Advance made, or to be
made, in Sterling, the amount in Sterling so drawn down, or to be so
drawn down, (b) in relation to a Revolving Credit Advance to be drawn
down in an Optional Currency, the amount in Sterling which was or
would be required to purchase the principal amount of that Advance in
the Optional Currency as determined in accordance with clause 4.2, (c)
in relation to a Swingline Advance or a Swingline Letter of Credit the
amount in Sterling which was or would be required to purchase the
principal amount of such Swingline Advance or, as the case may be, the
stated maximum limit of the liability of the Swingline Bank under such
Swingline Letter of Credit, at the spot rate of exchange for the
purchase of Dollars with Sterling at or about the time of receipt by
the Swingline Bank of the relevant Drawdown Notice or L/C Application,
as determined by the Swingline Bank and the Agent, and (d) at any
relevant time, in relation to other amounts, such amount of Sterling
or, if such amount is denominated in an Optional Currency, the
equivalent in Sterling at such time of such amount, in each case as
reduced by any repayment or prepayment under this Agreement;
19
"Subsidiary" of a person means any company or entity directly or
indirectly controlled by such person or any entity (whether or not so
controlled) treated as a subsidiary in the financial statements of
that person from time to time, for which purpose `control" means
either ownership of more than 50 per cent of the voting share capital
(or equivalent right of ownership) of such company or entity or the
right to control its policies and management whether by contract or
otherwise (and "controlled" shall be construed accordingly) and, for
the purposes of clauses 11.1.9, 12.1 and 13.1 only includes a
subsidiary undertaking within the meaning of section 258 of the
Companies ▇▇▇ ▇▇▇▇;
"Substitute" has the meaning given to it in clause 18.3;
"Substitution Certificate" means a certificate substantially in the
terms of Schedule 6;
"Swingline Advance" means (i) each borrowing of a portion of the
Commitments under the Swingline Facility by the Swingline Borrower or
(ii) (as the context may require) the principal amount of such
borrowing for the time being outstanding;
"Swingline Bank" means The Bank of New York and its successors in
title c/o BNY Capital Markets Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇;
"Swingline Borrower" means Cordiant US Holdings Inc.;
"Swingline Facility" means a Dollar swingline facility (including a
letter of credit facility) of up to the equivalent of
(pound)12,469,692 made available to the Swingline Borrower by the
Swingline Bank pursuant to clause 2.1.2;
"Swingline Facility Amount" means(pound)12,469,692 as reduced by any
relevant provision of this Agreement;
"Swingline Letter of Credit" means a standby letter of credit
denominated in Dollars and issued in a form agreed between the
Swingline Borrower and the Swingline Bank pursuant to clause 6.6;
"Swingline Letter of Credit Commission" means the rate per annum
calculated in accordance with clause 6.9;
"Swingline Letter of Credit Facility Amount" means (pound)2,771,043 as
reduced by any relevant provision of this Agreement;
"Swingline Minimum" means(pound)3,463,803 as reduced by any relevant
term of this Agreement;
"Swingline Term" means, in relation to any Swingline Advance, the
period for which that Swingline Advance is, or is to be, borrowed, as
specified in the Drawdown Notice for such Swingline Advance;
"TARGET Day" means a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer system (TARGET) is
operating;
"Taxes" includes all present and future taxes, levies, imposts,
duties, fees or charges of whatever nature together with interest
thereon and penalties in respect thereof and "Taxation" shall be
construed accordingly;
"Term" means a Revolving Credit Term or a Swingline Term, as the
context requires;
"Termination Date" means the last day of the Revolving Credit Facility
Availability Period;
"Total Commitments" means in respect of a Facility or (as the context
requires) the Facilities at any relevant time the total of the
Commitments of all the Banks in respect of such Facility or Facilities
at such time;
20
"Treaty" means the Treaty establishing the European Economic Community
being the Treaty of Rome of 25 March 1957 as amended by the Single
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty (which was signed on 7
February 1992 and came into force on 1 November 1993) as amended,
varied or supplemented from time to time;
"Treaty Lender" means a person which, by virtue of the provisions of a
double taxation agreement between the jurisdiction in which the
Borrower is resident and the country of residence of that person is
subject only to a prior direction given to the Borrower by the
appropriate tax authority pursuant to an application by that person,
eligible to have payments made to it by the Borrower under this
Agreement (i) in the case of a Bank party to this Agreement on the
date of this Agreement, without any deduction or withholding in
respect of Taxes, or (ii) in the case of a Substitute, subject to a
withholding or deduction in respect of Taxes to an extent no greater
than that which applied at the time of substitution to the Existing
Bank from which the Substitute acquired its Commitment and/or
Contribution;
"UK Borrower" means a Borrower which is a company which is resident
for Taxation purposes in the United Kingdom;
"UK Lender" means
(a) a company which is resident in the UK for tax purposes; or
(b) a partnership each of whose members is a company so resident; or
(c) a company which is not resident in the UK for tax purposes, but
which carries on a trade in the UK through a branch or agency and
is subject to corporation tax on interest paid to it under this
Agreement under section 11(2) of the Income and Corporation Taxes
▇▇▇ ▇▇▇▇;
"UK Listing Authority" means the Financial Services Authority in its
capacity as the competent authority for the purposes of Part VI of the
Financial Services and Markets ▇▇▇ ▇▇▇▇;
"US Borrower" means a Borrower incorporated or organised under the
laws of any of the United States of America or the District of
Columbia;
"US Lender" means a person to which payments shall be payable under
this Agreement by a US Borrower, and which:
(a) is created or organised under the laws of the United States of
America or of any state thereof or the District of Columbia and,
if such bank or financial institution is not a corporation, has
delivered to the Agent and each relevant US Borrower within 30
days from the date on which it becomes a party to this Agreement,
two accurate and complete original copies of Internal Revenue
Service Form W-9 (or any applicable successor or additional form)
duly executed, to establish that such bank or financial
institution is entitled to receive payment of principal,
interest, fees or other amounts under this Agreement free of
backup withholding; or
(b) is not created or organised under the laws of the United States
of America or any state thereof or the District of Columbia and
has delivered to the Agent and each relevant US Borrower within
30 days from the date on which it becomes a party to this
Agreement, two accurate and complete original copies of Internal
Revenue Service Form W-8BEN (with respect to a complete exemption
under an income tax treaty) or W-8EC1, or any applicable
successor or additional forms, duly executed by such bank or
financial institution, together with any other certificate or
statement of exemption required under the Code or the regulations
or pronouncements issued thereunder to establish that such bank
or financial institution is entitled to receive payment of
principal, interest, fees or other amounts under this Agreement
without any deduction or withholding of United States of America
federal income tax;
21
"Utilisation" means (i) each borrowing under the Overdraft Facility by
the Overdraft Borrowers or (ii) (as the context may require) the
principal amount of all such borrowings for the time being
outstanding;
"VAT" or "value added tax" means value added tax as provided for in
the Value Added Tax Act 1994 and legislation supplemental to that act
and any other similar tax;
"Zenith" means Zenith Optimedia Group Limited, a company incorporated
in England and Wales with registered no. 3423055;
"Zenith Joint Venture Agreement" means the Joint Venture Agreement
dated 27 September 2001 between the Parent and Publicis Group S.A.
relating to Zenith; and
"Zenith SPV" means Sonic Sun Limited, a company newly incorporated in
England and Wales with registered no 4350720, whose registered office
is at ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇.
1.3 Headings
Clause headings and the table of contents are inserted for convenience
of reference only and shall be ignored in the interpretation of this
Agreement.
1.4 Construction of certain terms
In this Agreement, unless the context otherwise requires:
1.4.1 references to clauses and schedules are to be construed as references
to the clauses of, and schedules to, this Agreement and references to
this Agreement include its schedules;
1.4.2 references to (or to any specified provision of) this Agreement or any
other document shall be construed as references to this Agreement,
that provision or that document as in force for the time being and as
from time to time amended in accordance with its terms, or, as the
case may be, with the agreement of the relevant parties and (where
such consent is, by the terms of this Agreement or the relevant
document, required to be obtained as a condition to such amendment
being permitted) the prior written consent of the relevant parties;
1.4.3 reference to a document or other papers "in the agreed form" means in
the form of such document initialled by way of identification by the
Agent and the Parent or in the form included in a Schedule to this
Agreement or in a form otherwise agreed between the Agent and the
Parent;
1.4.4 references to a "regulation" include any present or future regulation,
rule, directive, requirement, request or guideline (whether or not
having the force of law and to the extent applicable to any Bank, with
which banks customarily comply) of any agency, authority, central bank
or government department or any self-regulatory or other national or
supra-national authority;
1.4.5 words importing the plural shall include the singular and vice versa;
1.4.6 references to a time of day are to London time;
1.4.7 references to a "person" shall be construed as including references to
an individual, firm, company, corporation, unincorporated body of
persons or any State or any of its agencies;
1.4.8 references to "assets" include all or part of any business,
undertaking, real property, personal property, uncalled capital and
any rights (whether actual or contingent, present or future) to
receive, or require delivery of, any of the foregoing;
22
1.4.9 references to a "guarantee" include references to an indemnity (in the
nature of a guarantee) or other assurance against financial loss
(including, without limitation, an obligation to purchase assets or
services) in each case as a consequence of a default by any other
person to pay any Indebtedness and "guaranteed" shall be construed
accordingly;
1.4.10 references to the "equivalent" of an amount specified in a particular
currency (the "specified currency amount") shall be construed as a
reference to the amount of the other relevant currency which can be
purchased with the specified currency amount in the London foreign
exchange market at or about the relevant time on the day on which the
calculation falls to be made, for delivery on the relevant day, as
determined by the Agent; and
1.4.11 references to any enactment shall be deemed to include references to
such enactment as re-enacted, amended or extended.
1.5 Majority Banks
Where this Agreement provides for any matter to be determined by
reference to the opinion of the Majority Banks or to be subject to the
consent or request of the Majority Banks or for any action to be taken
on the instructions of the Majority Banks, such opinion, consent,
request or instructions shall (as between the Banks) only be regarded
as having been validly given or issued by the Majority Banks if all
the Banks shall have received prior notice of the matter on which such
opinion, consent, request or instructions are required to be obtained
and the relevant majority of Banks shall have given or issued such
opinion, consent, request or instructions but so that (as between each
Borrower and the Banks) each Borrower shall be entitled (and bound) to
assume that such notice shall have been duly received by each Bank and
that the relevant majority shall have been obtained to constitute
Majority Banks whether or not this is in fact the case.
1.6 Agent's opinion
1.6.1 Where this Agreement provides for the Agent's opinion to determine
whether any matter would or is reasonably likely to have a Material
Adverse Effect or a material adverse effect, as the case may be, the
Agent shall act in accordance with the instructions of the Majority
Banks in making such determination.
1.6.2 The Borrowers shall be entitled to assume that any such determination
by the Agent has been made in accordance with the provisions of clause
1.6.1.
2 The Facilities
2.1 Amount
Upon and subject to the terms of this Agreement and in reliance on
each of the representations and warranties in clause 11, for the
purposes set out in clause 1.1:
2.1.1 the Banks agree to lend to the Borrowers, the Revolving Credit
Facility in the principal sum of up to the Revolving Credit Facility
Amount or its equivalent in Optional Currencies;
2.1.2 the Swingline Bank agrees to lend to, and issue Swingline Letters of
Credit at the request of, the Swingline Borrower under the Swingline
Facility in Dollars in the aggregate principal sum equivalent to up to
(pound)12,469,692 (subject to the restriction, in the case of
Swingline Letters of Credit, of the Swingline Letter of Credit
Facility Amount); and
2.1.3 the Overdraft Bank agrees to make available to the Overdraft Borrowers
the Overdraft Facility in the principal sum of up to(pound)6,000,000.
23
The obligation of each Bank under this Agreement shall be to
contribute that proportion of each Revolving Credit Advance which, as
at the Drawdown Date of such Revolving Credit Advance, its Commitment
in respect of the relevant Revolving Credit Facility bears to the
Total Commitments in respect of the Revolving Credit Facility and, in
the case of the Swingline Facility and the Overdraft Facility, to
assume its obligations under clause 6 and clause 7 respectively.
2.2 Obligations several
The obligations of each Bank under this Agreement are several; the
failure of any Bank to perform such obligations shall not relieve any
Bank Finance Party or any Borrower of any of their respective
obligations or liabilities under this Agreement nor shall the Agent,
the Security Trustee, the Common Security Trustee, the Swingline Bank,
the Overdraft Bank or any Arranger be responsible for the obligations
of any Bank (except for its own obligations, if any, as a Bank) nor
shall any Bank be responsible for the obligations of any other Bank
under this Agreement.
2.3 Interests several
Without prejudice to the provisions of this Agreement relating to or
requiring action by the Majority Banks, the interests of the Bank
Finance Parties are several and the amount due to the Agent, to the
Security Trustee (for its own account), to the Common Security Trustee
(for its own account), to the Swingline Bank, to the Overdraft Bank,
to each Arranger and to each Bank is a separate and independent debt.
Each Bank Finance Party shall have the right to protect and enforce
its rights arising out of this Agreement (but subject always to the
terms of this Agreement) and it shall not be necessary for any other
Bank Finance Party to be joined as an additional party in any
proceedings for this purpose.
2.4 Maximum outstandings
The aggregate of the Sterling Amounts of all Revolving Credit
Advances, Swingline Advances, Swingline Letters of Credit and
Utilisations shall at no time exceed the Total Commitments in respect
of the Revolving Credit Facility.
3 Conditions
3.1 Documents and evidence required
[deleted]
3.2 General conditions precedent
3.2.1 Subject to clause 3.2.2, the obligation of each Bank to contribute to
any Advance, of the Swingline Bank to make available any Swingline
Advance or Swingline Letter of Credit or of the Overdraft Bank to make
available any Utilisation is subject to the condition that at the date
of each Drawdown Notice or L/C Application and on each Drawdown Date,
Utilisation or L/C Issue Date:
(a) the representations and warranties set out in clause 11, other
than the excluded representations and warranties set out in
clause 11.2.2 (and so that the representation and warranty in
clause 11.1.9 and 11.1.22 shall for this purpose refer to the
most recent financial statements delivered to the Agent under
clauses 12.1.6(a), 12.1.6(b) and 12.1.6(c)) are true and correct
on and as of each such date as if each were made with respect to
the facts and circumstances existing at such date; and
(b) no Default shall have occurred and be continuing unremedied and
unwaived or would result from the making of such Advance,
Utilisation or Swingline Letter of Credit.
24
3.2.2 In the case of the drawing of a Revolving Credit Advance which would
not, if drawn, cause the aggregate Sterling Amount of the Revolving
Credit Advances outstanding after such drawing to exceed the aggregate
Sterling Amount of the Revolving Credit Advances outstanding under the
Revolving Credit Facility concerned, prior to that drawing (after
taking account of any repayment made on or prior to the date of such
drawing) then, in either case:
(a) clause 3.2.1(a) shall apply only if the incorrectness would be
reasonably likely to have a Material Adverse Effect; and
(b) clause 3.2.1(b) shall not apply provided that the Term of the
relevant Revolving Credit Advance which is to be drawn shall be
one month or less.
3.2.3 The obligation of each Bank to contribute to a Revolving Credit
Advance which would, if drawn, cause the aggregate Sterling Amount of
the Revolving Credit Advances outstanding after such drawing to exceed
the aggregate Sterling Amount of the Revolving Credit Advances
outstanding under the Revolving Credit Facility prior to that drawing
(after taking account of any repayment made on or prior to the date of
such drawing) is subject to the further condition that the Parent and
the relevant Borrower are not aware (after due enquiry) of any matter
or event which is reasonably likely to result in a breach of clause
13.1 (Financial Covenants) or an Event of Default under any of clauses
14.1.1 (Non payment) or 14.1.5 to 14.1.15 inclusive (Cross-default and
insolvency events) either immediately on the date of the Drawdown
Notice or within the period ending 12 months after the date of the
drawing.
3.2.4 Nothing in this clause 3.2 shall be construed as constituting a waiver
of any right of the Banks (including, without limitation, their rights
under clause 14.2) arising from any Event of Default which shall have
occurred and be outstanding at the time of the drawing of the relevant
Revolving Credit Advance.
3.3 Waiver of conditions precedent
The conditions specified in this clause 3 are inserted solely for the
benefit of the Banks and may be waived on their behalf in whole or in
part and with or without conditions by the Agent acting on the
instructions of the Majority Banks (together with, in the case of the
Swingline Facility or the Overdraft Facility, the instructions of the
Swingline Bank and the Overdraft Bank respectively) in respect of any
Advance, Swingline Letter of Credit or Utilisation without prejudicing
the right of the Agent acting on such instructions to require
fulfilment of such conditions in whole or in part in respect of any
other Advance, Swingline Letter of Credit or Utilisation.
3.4 Notification
[deleted].
4 The Facilities; Currencies
4.1 Drawdown of Advances
4.1.1 Subject to the terms and conditions of this Agreement an Advance shall
be made available to the relevant Borrower:
(a) in the case of Revolving Credit Advances following receipt by the
Agent (with a copy to the Swingline Bank) from that Borrower of a
Drawdown Notice:
(i) in the case of an Advance to be drawn in an Optional
Currency other than Dollars, not later than 10 a.m. on the
third Banking Day before the proposed Drawdown Date;
(ii) in the case of an Advance to be drawn in Dollars not later
than 2 p.m. on the third Banking Day before the proposed
Drawdown Date; and
25
(iii) in the case of an Advance to be drawn in Sterling, not
later than 1 p.m. on the second Banking Day before the
proposed Drawdown Date; and
(b) in the case of Swingline Advances, following receipt by the
Swingline Bank (with a copy to the Agent) from the Swingline
Borrower of a Drawdown Notice, not later than 11 a.m. (New York
City time) on the relevant Drawdown Date.
4.1.2 A Drawdown Notice shall be effective on actual receipt by the Agent
or, as the case may be, the Swingline Bank and, once given, shall,
subject as provided in clause 5.8.1, be irrevocable.
4.2 Notification to Banks of Revolving Credit Advances
As soon as practicable after receipt of a Drawdown Notice in respect
of a Revolving Credit Advance complying with the terms of this
Agreement the Agent shall notify each Bank and, subject to clause 3,
each of the Banks shall on the Drawdown Date make available to the
Agent its portion of the Advance in accordance with clause 10.2. If an
Advance is to be drawn down in an Optional Currency the Banks shall
advance to the relevant Borrower on the drawdown of such Advance the
amount of the Optional Currency specified in the Drawdown Notice for
that Advance. The Agent shall determine the Sterling Amount of such
Advance at the spot rate of exchange quoted to it for the purchase of
such Optional Currency with Sterling at or about the time of receipt
of the Drawdown Notice for such Advance.
4.3 Amount and Term of Revolving Credit Advances
Each Revolving Credit Advance shall be:
4.3.1 of a Sterling Amount which is a minimum of(pound)5,000,000 and shall
be used for the purposes described in clause 1.1;
4.3.2 denominated in one currency only;
4.3.3 borrowed for a Revolving Credit Term of one, two, three or six months
or seven days or fourteen days, in each case ending on or before the
Termination Date, or such other periods as the relevant Borrower and
the Banks may agree.
4.4 Amount and Term of Swingline Advances
4.4.1 Each Swingline Advance shall be:
(a) of a Dollar amount which is a minimum of $100,000; and
(b) borrowed for a Swingline Term of one to five New York Banking
Days.
4.4.2 The Swingline Borrower may not borrow Swingline Advances and Swingline
Letters of Credit with an aggregate Sterling Amount at any time which
exceeds the Swingline Minimum, unless the Sterling Amount of such
excess, when aggregated with the Sterling Amount of any amount which
is the subject of a Drawdown Notice for a Revolving Credit Advance or
is outstanding under the Revolving Credit Facility, would not result
in the Total Commitments being exceeded.
4.5 Selection of currencies
Subject to the provisions of clause 4.6, if a Borrower so requests in
the Drawdown Notice for a Revolving Credit Advance, such Revolving
Credit Advance may be drawn down in an Optional Currency.
26
4.6 Limit on currencies; non-availability
A Revolving Credit Advance may not be drawn down in an Optional
Currency if (a) in consequence thereof there would be Revolving Credit
Advances outstanding in more than 4 different currencies or (b) any
Bank notifies the Agent not later than 3 p.m. on the third Banking Day
before the proposed Drawdown Date (or in the case of Dollars not later
than 5 p.m. on such date) that deposits of such Optional Currency are
not readily available to such Bank in an amount comparable with such
Bank's portion of the relevant Revolving Credit Advance or (c) the
Agent determines (acting reasonably) after consultation with the
Reference Banks at any time prior to 10 a.m. (local time in the place
of payment) on the Drawdown Date that by reason of any change in
currency availability, currency exchange rates or exchange controls it
is or will be impracticable for the relevant Revolving Credit Advance
to be drawn down in that Optional Currency. Accordingly, in any such
event, the relevant Revolving Credit Advance shall be drawn down in
Sterling.
4.7 Facility B conversion option
[deleted].
4.8 The Termination Date
Without prejudice to any other provision of this Agreement, the
Commitments in respect of the Revolving Credit Facility shall in any
event be reduced to zero on the Termination Date and no Revolving
Credit Advances under the Revolving Credit Facility (and no Swingline
Advance, Swingline Letters of Credit or Utilisations) shall be made or
issued or allowed to the Borrowers under this Agreement thereafter.
4.9 Application of proceeds
Without prejudice to any Borrower's obligations under clause 12.1.3,
none of the Bank Finance Parties shall have any responsibility for the
application of the proceeds of any Advance, Swingline Letter of Credit
or Utilisation by any Borrower.
4.10 Information
4.10.1 At close of business in London on each Banking Day on which a
Revolving Credit Advance is made, repaid or prepaid or a Drawdown
Notice in respect of a Revolving Credit Advance is received, the Agent
will confirm to the Swingline Bank the amount outstanding at that time
under the Revolving Credit Facility or which is the subject of a
Drawdown Notice in respect of a Revolving Credit Advance and of any
part of the Revolving Credit Facility or Swingline Facility which has
been cancelled on such day.
4.10.2 At close of business in New York on each New York Banking Day on which
a Swingline Advance is made, repaid or prepaid, a Swingline Letter of
Credit is issued or reduced in accordance with the terms of this
Agreement or a Drawdown Notice or L/C Application is received, the
Swingline Bank will confirm to the Agent the amount outstanding at
that time under the Swingline Facility in respect of Swingline
Advances and the aggregate outstanding L/C Liability in respect of all
Swingline Letters of Credit or which is the subject of an L/C
Application or a Drawdown Notice for a Swingline Advance.
4.10.3 The Swingline Bank and the Overdraft Bank will, following a request by
the Agent, promptly inform the Agent of the amount outstanding under
the Swingline Facility or the Overdraft Facility (as the case may be).
27
4.10.4 Neither the Agent nor the Swingline Bank shall have any liability to
any other party to this Agreement in respect of any matter arising
directly or indirectly as a result of its failure to comply with its
obligations under this clause 4.10 or for any Advance or Swingline
Letter of Credit being made or issued in breach of the limits set out
in this Agreement. In the event that any Advance is made or Swingline
Letter of Credit is issued in breach of any such limit the Parent
will, on demand by the Agent, forthwith procure that Advances are
prepaid in accordance with the terms of this Agreement and/or
Swingline Letters of Credit irrevocably cancelled so that any such
limit is no longer breached.
4.11 Refinancing of the Existing Group Facilities following a Relevant
Acceleration Notice and the refinancing of the Existing Lighthouse
Facilities
[deleted].
4.12 Refinancing of the Existing Group Facilities and the Existing
Lighthouse Facilities following a No Consent Notice or a Unanimous
Consent Notice
[deleted].
4.13 Refinancing of the Existing Lighthouse Facilities following a Consent
Notice
(deleted].
4.14 Operation of the Facilities and the Existing Group Facilities
following a Consent Notice
[deleted].
5 interest; alternative interest rates
5.1 Calculation of Margin
[deleted]
5.2 Interest rate for Revolving Credit Advances
The relevant Borrower shall pay to the Agent interest on each
Revolving Credit Advance drawn by it on its Repayment Date (or, in the
case of a Revolving Credit Advance having a Revolving Credit Term of
more than six months, by instalments, every six months from the
Drawdown Date of such Revolving Credit Advance and on the relevant
Repayment Date), at the rate per annum being the aggregate of (a) the
Margin (b) the Additional Cost and (c) the Funding Cost.
5.3 Interest rate for Swingline Advances
The Swingline Borrower shall pay to the Swingline Bank interest on
each Swingline Advance drawn by it at the rate being the aggregate of
(i) the Margin which portion shall be paid to the Agent upon receipt
by the Swingline Bank for the account of each Bank, pro rata to its
Commitment in respect of the Revolving Credit Facility and (ii) the
Federal Funds Rate (which portion shall be for the account of the
Swingline Bank). Such interest will be paid in arrears on the
Swingline Interest Payment Date falling on or immediately after the
Repayment Date of such Swingline Advance. For the purposes of this
clause 5.3 "Swingline Interest Payment Date" shall mean each of the
dates falling at three monthly intervals beginning three months after
the date of this Agreement and the Termination Date in respect of the
Revolving Credit Facility.
5.4 Interest rate and Interest Periods for the Conversion Advance
[deleted].
28
5.5 Interest for late payment
5.5.1 If the relevant Borrower fails to pay any sum (including, without
limitation, any sum payable pursuant to this clause 5.5) on its due
date for payment under this Agreement that Borrower shall pay interest
on such sum from the due date up to the date of actual payment (as
well after as before judgement) at a rate determined pursuant to this
clause 5.5. The period beginning on such due date and ending on such
date of payment shall be divided into successive periods of not more
than three months as selected by the Agent, the Swingline Bank or the
Overdraft Bank (as the case may be) each of which (other than the
first, which shall commence on such due date) shall commence on the
last day of the preceding such period.
5.5.2 The rate of interest applicable to each such period shall be:
(a) in the case of overdue amounts in relation to Revolving Credit
Advances, the aggregate of (A) one per cent. per annum, (B) the
Margin (C) the Additional Cost and (D) the Funding Cost;
(b) in the case of overdue amounts in relation to Swingline Advances
and Swingline Letters of Credit, the aggregate of (A) one per
cent. per annum, (B) the Margin and (C) the Federal Funds Rate;
(c) in the case of overdue amounts in relation to Utilisations, the
aggregate of (A) one per cent. per annum, (B) the Margin and (C)
the Overdraft Bank's base rate in effect from time to time; and
(d) in any other case, the aggregate of (A) one per cent. per annum,
(B) the Margin, (C) the Additional Cost and (D) the Funding Cost.
5.5.3 If such unpaid sum is an amount of principal which shall have become
due and payable, by reason of a declaration by the Agent under clause
14.2.2 or a prepayment pursuant to clauses 8.4 or 16.1, prior to the
Repayment Date relating thereto, the first such period selected by the
Agent shall end on such Repayment Date and interest shall be payable
on such unpaid sum during such period at a rate one per cent above the
rate applicable thereto immediately before it shall have become so due
and payable.
5.5.4 Interest under this clause 5.5 shall be due and payable on the last
day of each period determined by the Agent, the Overdraft Bank or the
Swingline Bank (as the case may be) pursuant to this clause 5.5 or, if
earlier, on the date on which the sum in respect of which such
interest is accruing shall actually be paid. If, for the reasons
specified in clause 5.8.1(a) or 5.8.1(b) it is not possible to
determine a rate in accordance with the foregoing provisions of this
clause 5.5, then;
(a) in the case of amounts due other than in relation to Swingline
Advances, Swingline Letters of Credit or the Overdraft Facility
then each Bank shall promptly notify the Agent of the cost of
funds to such Bank and interest on any sum not paid on its due
date for payment shall be calculated for each Bank at a rate
determined by the Agent to be one per cent. per annum above the
aggregate of the Margin and the cost of funds (including, in the
case of amounts in Sterling, Additional Cost) to such Bank; and
(b) in the case of amounts due in relation to Swingline Advances or
Swingline Letters of Credit, interest shall be calculated at a
rate determined by the Swingline Bank to be one per cent. per
annum above the aggregate of the Margin and the cost of funds to
the Swingline Bank.
5.6 Notification of interest rate
The Agent shall notify the Borrowers and the Banks promptly of each
rate of interest determined under this clause 5.
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5.7 Reference Bank quotations
If any Reference Bank is unable or otherwise fails to furnish a
quotation for the purpose of calculating LIBOR or EURIBOR (where such
a quotation is required having regard to the definition of "LIBOR" or
"EURIBOR" in clause 12) the interest rate for the relevant Revolving
Credit Term or other period shall be determined, subject to clause
5.8, on the basis of the quotations furnished by the remaining
Reference 8anks.
5.8 Market disruption; non-availability
5.8.1 If and whenever, at any time prior to the making of a Revolving Credit
Advance:
(a) (at a time when Reference Bank quotations are required having
regard to the definition of "LIBOR" or "EURIBOR" in clause 1.2)
the Agent shall have determined, after consultation with the
Reference Banks (which determination shall, in the absence of
manifest error, be conclusive), that adequate and fair means do
not exist for ascertaining LIBOR or EURIBOR during such Revolving
Credit Term; or
(b) none or only one of the Reference Banks supplies the Agent with a
quotation for the purpose of calculating LIBOR or EURIBOR (where
such a quotation is required having regard to the definition of
"LIBOR" or "EURIBOR" in clause 1.2); or
(c) the Agent shall have received notification from Banks with
Contributions aggregating not less than one-third of the total of
the relevant Revolving Credit Advance that deposits in Sterling
or the relevant Optional Currency (as applicable) are not
available to such Banks in the London Interbank Market in the
ordinary course of business in sufficient amounts to fund their
Contributions to such Revolving Credit Advance or that LIBOR or,
as relevant, EURIBOR does not accurately reflect the cost to such
Banks of obtaining such deposits;
the Agent shall forthwith give notice (a "Determination Notice") to
the Parent and each of the Banks. A Determination Notice shall contain
particulars of the relevant circumstances giving rise to its issue.
5.8.2 During the period of 10 days after any Determination Notice has been
given by the Agent under clause 5.8.1, each Bank shall certify an
alternative basis (the "Substitute Basis") for making available or, as
the case may be, maintaining its Contribution. The Substitute Basis
may (without limitation) include alternative interest periods,
alternative currencies or alternative rates of interest but shall
include a margin above the cost of funds to such Bank (including
Additional Cost, if any) equivalent to the Margin. Each Substitute
Basis so certified shall be binding upon the relevant Borrower and
shall take effect in accordance with its terms from the date specified
in the Determination Notice until such time as the Agent notifies the
Borrower that none of the circumstances specified in clause 5.8.1
continues to exist whereupon the normal interest rate fixing
provisions of this Agreement shall apply.
5.8.3 If, and whenever at any time prior to the making of a Swingline
Advance, the Swingline Bank gives notice to the Swingline Borrower and
the Agent that deposits in Dollars are not available in the ordinary
course of businesses in sufficient amounts to fund such Swingline
Advance, Swingline Advances shall not be made until the Swingline Bank
gives notice to the contrary to the Parent and the Agent.
6 The Overdraft Facility and the Swingline Facility
6.1 The Overdraft Facility
6.1.1 Utilisations of the Overdraft Facility by the Overdraft Borrowers may
be made subject to the limitation that the amount outstanding under
the Overdraft Facility (calculated on a net basis and taking account
of non-Sterling currency balances) shall not exceed (pound)6,000,000
at any time.
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6.1.2 No principal amount in respect of the Overdraft Facility may be
demanded by the Overdraft Bank unless a notice has been given under
clause 14.2 but thereafter the monies owing in respect of the
Overdraft Facility are repayable on demand.
6.1.3 The Overdraft Bank shall be at liberty at any time to refuse to allow
any Utilisation if the result would be that the limit in clause 6.1.1
above would be exceeded.
6.2 Terms and conditions
The Overdraft Facility is made available on the terms and conditions
set out in this Agreement and the Overdraft Bank's normal overdraft
terms and conditions to the extent that the same are not inconsistent
with this Agreement.
6.3 Utilisation, interest and repayment
6.3.1 Any borrowing made available under the Overdraft Facility may be drawn
only in Sterling.
6.3.2 The Overdraft Borrowers shall pay to the Overdraft Bank interest on
Utilisations under the Overdraft Facility at the rate being the
aggregate of (i) the Margin, which portion shall be paid to the Agent
upon receipt by the Overdraft Bank for the account of each Bank pro
rata to its Commitment and (ii) the Overdraft Bank's base rate from
time to time (which portion shall be for the account of the Overdraft
Bank). Such interest shall accrue from day to day on the basis of
actual days elapsed and a year of 365 days, and shall be debited to
the relevant Overdraft Borrower's account on the Overdraft Bank's
normal quarterly charging dates.
6.3.3 The Overdraft Borrowers shall repay or discharge the Overdraft
Facility in full on the Termination Date.
6.4 Set off under Overdraft Facility
Each Overdraft Borrower by way of security for all its obligations and
liabilities from time to time under the Overdraft Facility hereby
irrevocably agrees that the Overdraft Bank may at any time, without
notice or demand and notwithstanding any settlement of any obligation
under the Overdraft Facility or other matter whatsoever, combine or
consolidate all or any of the accounts of the Overdraft Borrower held
with the Overdraft Bank and/or set-off or transfer all and any moneys
standing to the credit of any one or more accounts of it with the
Overdraft Bank or otherwise owing by the Overdraft Bank to it in or
towards satisfaction of its obligations under the Overdraft Facility
and authorises the Overdraft Bank to purchase with such moneys such
other currencies as may be necessary to effect such set-off or
transfer at the relevant equivalent rate.
6.5 Set off under Swingline Facility
The Swingline Borrower by way of security for all its obligations and
liabilities from time to time under the Swingline Facility hereby
irrevocably agrees that the Swingline Bank may at any time, without
notice or demand and notwithstanding any settlement of any obligation
under the Swingline Facility or other matter whatsoever, combine or
consolidate all or any of the accounts of the Swingline Borrower held
with the Swingline Bank and/or set-off or transfer all and any moneys
standing to the credit of any one or more accounts of it with the
Swingline Bank or otherwise owing by the Swingline Bank to it in or
towards satisfaction of its obligations under the Swingline Facility
and authorises the Swingline Bank to purchase with such moneys such
other currencies as may be necessary to effect such set-off or
transfer at the relevant equivalent rate.
6.6 Swingline Letter of Credit Applications
6.6.1 Subject to the terms and conditions of this Agreement, Swingline
Letters of Credit shall be made available to the Swingline Borrower
following receipt by the Swingline Bank (with a copy to the Agent) of
an L/C Application from the Swingline Borrower not later than 10 a.m.
(New York City time) on the second Banking Day before the proposed L/C
Issue Date.
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6.6.2 Each such L/C Application shall be effective on actual receipt by the
Swingline Bank and once given shall be irrevocable.
6.6.3 The obligations of the Swingline Bank and the other Banks to
participate in a Swingline Letter of Credit are subject to the further
condition precedent that, prior to an L/C Application for a Swingline
Letter of Credit being made, the Swingline Bank or any Bank may
require a legal opinion from lawyers acceptable to it to the effect
that the terms of that Swingline Letter of Credit would be upheld by
the courts of the jurisdiction of the beneficiary but only if the
beneficiary is incorporated, or its principal place of business is
situate, in a jurisdiction where the Swingline Bank or the Bank
reasonably believes that any of the terms of the Swingline Letter of
Credit would not necessarily be upheld.
6.6.4 The terms of the relevant Swingline Letter of Credit must contain a
clear procedure for the making of claims under that Swingline Letter
of Credit satisfactory to the Swingline Bank which shall include a
requirement that the beneficiary gives at least 5 Banking Days' notice
of settlement under the relevant Swingline Letter of Credit.
6.7 L/C Application
An L/C Application will not be regarded as having been duly completed
unless:
6.7.1 the proposed L/C Issue Date is a Banking Day falling within the
Revolving Credit Facility Availability Period;
6.7.2 the Swingline Letter of Credit is denominated in Dollars;
6.7.3 it is accompanied by a copy of the terms of the proposed Swingline
Letter of Credit and the name of the beneficiary is specified;
6.7.4 the Expiry Date is a Banking Day falling no later than 12 months after
the L/C Issue Date and in any event falling on or before the
Termination Date; and
6.7.5 there is a maximum limit to the stated liability of the Swingline Bank
under the Swingline Letter of Credit.
6.8 Amount of Swingline Letters of Credit
No Swingline Letter of Credit may be issued on any day for an amount,
the Sterling Amount of which, when aggregated with the Sterling Amount
of all other Swingline Letters of Credit outstanding or to be issued
on such day, would exceed the Swingline Letter of Credit Facility
Amount.
6.9 Swingline Letter of Credit Commission
6.9.1 The rate of Swingline Letter of Credit Commission applicable to each
Swingline Letter of Credit will be the same as the rate of the Margin.
6.9.2 Swingline Letter of Credit Commission on the daily Outstanding L/C
Liability of each Swingline Letter of Credit (as determined by the
Swingline Bank) is payable by the Swingline Borrower in accordance
with clause 6.9.3 below to the Swingline Bank and shall be paid to the
Agent upon receipt by the Swingline Bank for the account of each Bank
pro rata to its Commitment.
6.9.3 Swingline Letter of Credit Commission is payable in arrears on the
last day of each Quarter and on the Termination Date on the
Outstanding L/C Liability of each outstanding Swingline Letter of
Credit in respect of the period commencing on the day immediately
following the date on which an installment of Swingline Letter of
Credit Commission was last payable in respect of the relevant
Swingline Letter of Credit or, if none, the date of issue of such
Swingline Letter of Credit and ending on the relevant payment date.
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6.10 Notification of demand under a Swingline Letter of Credit
The Swingline Bank, forthwith after being notified by the beneficiary
under a Swingline Letter of Credit that it is required to make payment
under that Swingline Letter of Credit, shall notify the Agent and the
Swingline Borrower that such payment is due and of the Settlement
Amount and Settlement Date in respect of such Swingline Letter of
Credit.
6.11 Conversion of Swingline Letter of Credit to Swingline Advance
6.11.1 On receipt of a notice from the Swingline Bank under clause 6.10 the
Swingline Borrower shall either:
(a) Convert to Swingline Advance
subject to the terms and conditions of this Agreement, convert
the relevant Settlement Amount into a Swingline Advance by
delivering to the Swingline Bank, no later than close of business
on the first Banking Day following the date of receipt of the
said notice (the "Conversion Date"), a Drawdown Notice, copied to
the Agent (which shall be irrevocable) requesting a Swingline
Advance to the Swingline Borrower of such amount; or
(b) Pay under indemnity
(if the Swingline Borrower does not wish to request a Swingline
Advance or the conditions precedent to such Swingline Advance
being made available set out in clause 3 are not fulfilled or the
Swingline Borrower fails to respond to such notice by close of
business on the Conversion Date) treat such notice as a demand
under the indemnity in clause 7.4, and pay to the Swingline Bank,
no later than close of business on the Conversion Date, the
relevant Settlement Amount.
6.11.2 Each Swingline Advance pursuant to clause 6.11.1(a) above shall be
paid, not later than 11.00 a.m. on the day which is three New York
Banking Days preceding the Settlement Date, to the Swingline Bank and
shall be held in an account bearing interest at the Swingline Bank's
overnight deposit rate until the Settlement Date, which interest shall
be for the account of the Swingline Borrower.
6.12 Payment by the Banks to Swingline Bank
6.12.1 If the Swingline Bank has not received the Settlement Amount from the
Swingline Borrower by 11.00 a.m. three Banking Days before the
Settlement Date, it shall notify the Agent by not later than 2 p.m.
three Banking Days before the Settlement Date.
6.12.2 If the Agent has been notified under clause 6.12.1 above, it shall
notify each Bank by not later than 5 p.m. three Banking Days before
the Settlement Date.
6.12.3 Each Bank notified under clause 6.12.2 above shall pay to the
Swingline Bank on the Settlement Date the amount of that Bank's
proportionate liability in respect of the unpaid Settlement Amount.
6.13 Default by Banks in payment to Swingline Bank
6.13.1 If any Bank (an "L/C Defaulting Bank") fails to make any payment due
from it for the account of the Swingline Bank under clause 6.12 then
until the Swingline Bank has been reimbursed in respect thereof in
full (but without prejudice to the obligations of that L/C Defaulting
Bank to make such payment):
(a) the L/C Defaulting Bank shall hold on trust for the Swingline
Bank the benefit of any security now or hereafter created to
secure the obligations of the Swingline Borrower under this
Agreement and to which that L/C Defaulting Bank would have been
entitled had it made such payment; and
33
(b) for the purposes of determining the constitution of the Majority
Banks:
(i) the Swingline Bank shall be treated as having a Contribution
or Commitment (as the case may be) equal to the amount of
such non-payment of the L/C Defaulting Bank (in addition to
the Commitment or Contribution (if any) which the Swingline
Bank already had in its capacity as a Bank); and
(ii) the Commitment or Contribution (as the case may be) of the
L/C Defaulting Bank shall be treated as having been reduced
to the same extent.
6.13.2 The rights conferred upon the Swingline Bank in this clause 6.13 are
in addition to any other rights which it may have against an L/C
Defaulting Bank.
6.14 Reduction of Swingline Letter of Credit Facility
The Outstanding L/C Liability of any Swingline Letter of Credit shall
be treated as reduced for the purposes of this Agreement only when and
to the extent that (a) the Swingline Bank has made a payment under a
Swingline Letter of Credit or (b) the liability of the Swingline Bank
under a Swingline Letter of Credit has been reduced in accordance with
the terms of the relevant Swingline Letter of Credit.
7 Indemnity of Overdraft Bank and Swingline Bank
7.1 Shortfall notification in relation to Swingline Advances and
Utilisations
If the Overdraft Borrowers or the Swingline Borrower fail to pay to
the Overdraft Bank or the Swingline Bank any amount under the
Overdraft Facility or any Swingline Advance, as relevant, when due and
payable (the difference between the amount due and the amount paid
being the "Shortfall") then, without limitation to all other rights
and remedies in respect thereof, the Overdraft Bank or the Swingline
Bank, as relevant, shall inform the Agent of such failure, specifying
the amount and currency of the Shortfall whereupon the Agent shall
issue a notification (a "Shortfall Notification") to the Banks stating
the amount of the Shortfall.
7.2 Payment by Banks
Following the issue of a Shortfall Notification each Bank shall pay to
the Agent for the account of the Overdraft Bank or the Swingline Bank,
as relevant, an amount equal to the proportion of the shortfall which
that Bank's Commitment bears to the Total Commitments in respect of
the Revolving Credit Facility at that time. Such payments shall be
made on the next Banking Day following the issuance of the Shortfall
Notification and shall, subject to clause 7.3, satisfy the amount due
from the relevant Borrower in respect of which such Shortfall arose to
the extent of such payments.
7.3 Indemnity from Borrowers in relation to Swingline Advances and
Utilisations
The Overdraft Borrowers or the Swingline Borrower (as the case may be)
shall indemnify the Banks on demand against any amount payable by them
under clause 7.2. The indemnity in this clause 7.3 shall be a
continuing indemnity notwithstanding any intermediate payment, partial
settlement or other matter whatsoever and shall be in addition to any
security or other right the Banks may have against the Overdraft
Borrowers, the Swingline Borrower or any other Obligor and shall not
be wholly or partly discharged, varied or affected by any time or
indulgence granted to or by the Banks or any other party or by any
combination of accounts, set-off or other agreement between the Banks
and the Overdraft Bank or the Swingline Bank, as relevant in respect
of any amount due under clause 7.2 or by anything done or omitted
which would but for this provision operate to exonerate the Overdraft
Borrowers, the Swingline Borrower or any other Obligor. The Banks
shall not be obliged to make any claim or demand on any other person
liable or to resort to any other Collateral Instrument or other
document or other means of payment before enforcing this indemnity
against the Overdraft Borrowers or the Swingline Borrower (as the case
may be) and no other such action which the Banks do take in connection
with any such Collateral Instrument, other document or other means of
payment shall discharge
34
reduce or otherwise affect the liability of the Overdraft Borrowers or
the Swingline Borrower (as the case may be) under this clause 7.3.
7.4 Counter-indemnity for Swingline Letters of Credit
7.4.1 The Swingline Borrower:
(a) agrees to pay to the Agent for the account of the Swingline Bank,
for the account of all Banks, to the extent that they have
complied with their obligations under clause 6.12, on demand from
the Agent an amount equal to and in the same currency as each
amount demanded in accordance with clause 7.4.1(b) below in
respect of a Swingline Letter of Credit; and
(b) undertakes to indemnify and hold harmless the Agent, the
Swingline Bank and each Bank from and against all liabilities,
costs, losses, damages and expenses which they incur or sustain
by reason of or arising in any way whatsoever in connection with
or by reference to the issue of a Swingline Letter of Credit or
the performance thereof.
7.4.2 The Swingline Borrower and each Bank unconditionally and irrevocably:
(a) authorises and directs the Swingline Bank to pay any prima facie
valid demand under and in accordance with a Swingline Letter of
Credit (which the Swingline Bank believes, in its sole
discretion, to be valid) without requiring proof of the agreement
of the Swingline Borrower or any Bank that the amounts so
demanded or paid are or were due and notwithstanding that the
Swingline Borrower or any Bank may dispute the validity of any
such request, demand or payment;
(b) confirms that the Swingline Bank deals in documents only and
shall not be concerned with the legality of the claim or any
other underlying transaction or any set-off, counterclaim or
defence as between the Swingline Borrower and any beneficiary of
a Swingline Letter of Credit;
(c) agrees that neither the Swingline Bank nor any other Bank need
have regard to the sufficiency, accuracy or genuineness of any
such demand or any certificate or statement in connection
therewith or any incapacity of or limitation upon the powers of
any person signing or issuing such demand, certificate or
statement which appears on its face to be in order and agrees
that neither the Swingline Bank nor any Bank shall be obliged to
enquire as to any such matters and may assume, unless notified to
the contrary, that any such demand, certificate or statement
which appears on its face to be in order is correct and properly
made; and
(d) without prejudice to the preceding sub-clauses, agrees that if
the Swingline Bank pays any such demand in accordance with the
terms of the relevant Swingline Letter of Credit which is not
legally payable that amount shall nevertheless be regarded as
having been property paid for the purposes of this Agreement.
7.5 Rights of contribution and subrogation of Swingline Borrower
Until all amounts due under this Agreement have been fully and
irrevocably discharged and all amounts which are or may become payable
by the Borrowers under or in connection with the Security Documents
have been irrevocably paid in full, the Swingline Borrower shall not,
by virtue of any payment made by it under or in connection with or
referable to this clause 7 or otherwise, be subrogated to any rights,
security or moneys held or received by any Bank Finance Party or be
entitled at any time to exercise, claim or have the benefit of any
right of contribution or subrogation or similar right against any Bank
Finance Party. All rights of contribution or similar rights arising in
respect of any amount due under this Agreement or in connection with
the Security Documents against any Bank Finance Party are hereby
waived by the Swingline Borrower.
35
7.6 Waiver of defenses of Swingline Borrower
The Swingline Borrower agrees that its obligations under this clause 7
shall not be affected by any act, omission, matter or thing which but
for this provision might operate to release or otherwise exonerate it
from its obligations under this Agreement in whole or in part,
including without limitation and Whether or not known to it:
7.6.1 any time or waiver granted to or composition with any Finance Party,
any beneficiary of a Swingline Letter of Credit or any other person;
7.6.2 any taking, variation, compromise, renewal or release of, or refusal
or neglect to perfect or enforce, any rights, remedies or securities
available to any Finance Party, or other person or arising under a
Swingline Letter of Credit; or
7.6.3 any variation or extension of or increase in liabilities under a
Swingline Letter of Credit, so that references in this Agreement to
Swingline Letters of Credit shall include each such extension and
variation.
7.7 Continuing Indemnity of Swingline Borrower
This shall be a continuing indemnity, shall extend to the ultimate
balance of the obligations and liabilities of the Swingline Borrower
under this clause 7 and shall continue in force notwithstanding any
intermediate payment in whole or in part of such obligations or
liabilities.
7.8 Additional security
The obligations of the Swingline Borrower under this clause 7 shall be
in addition to and shall not be in any way prejudiced by any
collateral or other security now or hereafter held by any Finance
Party as security or any lien to which such Finance Party may be
entitled.
7.9 Preservation of rights
No invalidity or unenforceability of all or any part of this clause 7
shall affect any rights of indemnity or otherwise which any Finance
Party would or may have in the absence of or in addition to this
clause 7.
8 Repayment, prepayment and cancellation
8.1 Repayment of Revolving Credit Advances
The relevant Borrower shall repay to the Agent each Revolving Credit
Advance on its Repayment Date in the currency in which it is
denominated. If a Revolving Credit Advance (the "new Revolving Credit
Advance") is to be made on a day on which another Revolving Credit
Advance made to the same Borrower (the "maturing Revolving Credit
Advance") denominated in the same currency as the new Revolving Credit
Advance is due to be repaid then, subject to the terms of this
Agreement and so long as the conditions referred to in clause 3.2
shall have been satisfied in relation to the new Revolving Credit
Advance, (a) the maturing Revolving Credit Advance shall be deemed to
have been repaid on its Repayment Date either in whole (if the new
Revolving Credit Advance is equal to or greater than the maturing
Revolving Credit Advance) or in part (if the new Revolving Credit
Advance is less than the maturing Advance) and (b) to the extent that
the maturing Revolving Credit Advance is so deemed to have been
repaid, the principal amount of the new Revolving Credit Advance to be
made on such date shall be deemed to have been credited to the account
of such Borrower by the Agent on behalf of the Banks in accordance
with the terms of this Agreement and the Banks shall only be obliged
to make available to such Borrower a principal amount equal to the
amount by which the new Revolving Credit Advance exceeds the maturing
Revolving Credit Advance. On the Termination Date, all outstanding
Revolving Credit Advances under the Revolving Credit Facility and
other sums (if any) then owing under this Agreement in connection with
the Revolving Credit Facility shall in any event be repaid or paid in
full.
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8.2 Repayment of Swingline Advances
The Swingline Borrower shall repay to the Swingline Bank each
Swingline Advance on its Repayment Date and shall repay or discharge
in full all outstanding Swingline Advances on the Termination Date.
8.3 Repayment of the Conversion Advance
[deleted].
8.4 Voluntary prepayment and cancellation of Commitments
Subject to the provisions of this clause 8, the Borrowers may without
premium or penalty prepay any Revolving Credit Advance together with
the immediate cancellation of an equivalent amount of the Commitments
in respect of the Revolving Credit Facility (pro rata to the relevant
Banks' respective Commitments in respect of that Facility).
8.5 Additional voluntary prepayment
The Borrowers may (in whole but not in part only), without premium or
penalty, but without prejudice to their obligations under clauses 5.8,
10.5 and 16.2 if they have become obliged to pay additional amounts
under clause 10.5 or 16.2 to any Bank or a Substitute Basis applies by
virtue of clause 5.8:
8.5.1 prepay the Contribution to Advances of such Bank or, in the case of
the application of a Substitute Basis, prepay any Bank's Contribution
to which such Substitute Basis applies; and
8.5.2 pay an amount equal to the maximum possible liability of such Bank
under clause 7.1 in respect of the Overdraft Facility and the
Swingline Facility to the Agent to be held on a blocked account as
cash collateral for that Bank's liabilities on terms satisfactory to
the Agent (acting reasonably).
Upon any notice of such prepayment being given, the Commitment of the
relevant Bank shall be reduced to zero in respect of the Revolving
Credit Facility, but such Bank's obligations under clauses 6 and 7
shall remain in full force and effect until the Agent notifies such
Bank that it is satisfied that cash collateral has been received under
clause 8.5.2 representing the full amount of that Bank's liabilities.
8.6 Mandatory prepayment/reduction
8.6.1 Full prepayment events: The Parent shall (or shall procure that it and
the other Borrowers shall) prepay all the Facilities in whole
immediately upon the occurrence of an External Refinancing or the sale
or other disposal of all or substantially all of the assets and
undertakings of the Group or a Change of Control whereupon the Total
Commitments in respect of all the Facilities shall be reduced to zero.
8.6.2 Equity raising: The Parent shall apply the proceeds (net of the
reasonable related costs incurred by the Parent as part of such
exercise) of any issue of shares, rights issue or other equity raising
by the Parent including, for the avoidance of doubt, the exercise of
any option to call on the Parent to issue shares permitted under
clause 12.2.11(b) (other than shares issued as consideration for any
Permitted Acquisition and the issue of shares permitted under clause
12.2.6(c) (Acquisitions)) in or towards immediate prepayment and
cancellation of the Facilities in accordance with clauses 8.6.5,
8.6.6, 8.7 and 8.8.
8.6.3 Zenith Joint Venture Agreement: The Parent shall (or shall procure
that it and the other Borrowers shall) be obliged to apply in or
towards immediate prepayment and cancellation of the Facilities in
accordance with clauses 8.6.5, 8.6.6, 8.7 and 8.8 the Net Proceeds
received by any member of the Group from:
37
(a) any exercise of any of the put or call options under the Zenith
Joint Venture Agreement or any other disposal of shares (or other
interests) in Zenith;
(b) any claims for damages or other remedies in respect of any breach
of any of the put and call options in the Zenith Joint Venture
Agreement;
(c) any claim in respect of all warranties, indemnities and
representations contained in the Zenith Joint Venture Agreement
to the extent connected to any of the put and call options
contained therein; and
(d) any Flotation of, or sale or other disposal of all or
substantially all of its assets and undertakings by, Zenith or
any of its Subsidiaries.
8.6.4 Disposal of assets:
(a) Subject to clause 8.6.4(b), but without prejudice to clause
12.2.4 (Disposals), if any member of the Group disposes of any
assets (including shares and fixed assets) to any person which is
not a member of the Group, of Which:
(i) the aggregate Net Proceeds are at least (pound)500,000 (or
its equivalent at the date of the relevant disposal) (each a
relevant disposal"); and
(ii) the aggregate Net Proceeds of relevant disposals by the
Group in any Financial Year are in excess of
(pound)5,000,000 (or its equivalent at the date of the
relevant disposal),
the Parent shall (or shall procure that it and other Borrowers
shall), apply an amount equal to the aggregate Net Proceeds of
such relevant disposals which are in excess of (pound)5,000,000
(or its equivalent) in mandatory prepayment and cancellation of
the Facilities in accordance with clauses 8.6.5. 8.6.6, 8.7 and
8.8.
(b) The provisions of clause 8.6.4(a) will not apply in relation to
the disposals referred to in clauses 12.2.4(a), 12.2.4(c), (d),
(e), (f) and (g).
8.6.5 Application of mandatory prepayment: All amounts to be prepaid under
clause 8.6 shall be applied:
(a) firstly, in prepayment of the Revolving Credit Facility by such
amount being applied in prepayment of the Revolving Credit
Facility Advances and the immediate cancellation of an equivalent
amount of the Commitments in respect of the Revolving Credit
Facility (pro rata to the relevant Banks' respective Commitments
in respect of that Facility); and
(b) once all the Revolving Credit Facility Advances have been prepaid
or repaid in full and the equivalent amount of the Commitments
have been cancelled, pro rata in prepayment of the Swingline
Facility and the Overdraft Facility (pro rata the amounts
outstanding to the Overdraft Bank and the Swingline Bank
(including any Outstanding L/C Liability)) and such relevant pro
rata amounts being applied, in the case of the Swingline Facility
first in prepayment of the outstanding Swingline Advances and
secondly as cash cover in respect of the outstanding Swingline
Letters of Credit and, in the case of the Overdraft Facility, in
prepayment of all Utilisations thereunder, and the immediate
cancellation of an equivalent amount of the Commitments in
respect of such Facilities (pro rata to the Swingline Bank's and
the Overdraft Bank's Commitments in respect of those Facilities)
and the Commitments in respect of the Revolving Credit Facility,
and for the avoidance of doubt, to the extent that the Commitments in
respect of the Revolving Credit Facility are less than the aggregate
of the Commitments in respect of the Swingline Facility and the
Overdraft Facility then the Commitments in respect of the Swingline
Facility and the Overdraft Facility will be reduced pro rata so that
their aggregate does not exceed the Revolving Credit Facility
Commitments.
38
8.6.6 Cash Collateral: If this clause 8.6 would require the Borrowers to
procure prepayment of any Advance otherwise than on its Repayment
Date, the Borrowers can elect (by written notice made to the Agent to
be received not later than 10 a.m. on the date of receipt of the
relevant amounts to be prepaid) to credit the amount to be repaid to a
Cash Collateral Account in the name of the relevant Borrower on the
date on which such prepayment would, but for this clause, be due to be
made and to prepay the relevant Advance at the Repayment Date of such
Advance. Following any such election, and provided the required
payment is made to such Cash Collateral Account, the obligation to
prepay the relevant Advance will not arise until the Repayment Date of
such Advance. The Borrowers irrevocably authorise the Agent and Common
Security Trustee to withdraw monies from such Cash Collateral Account
and apply such monies against prepayments which are due to be made
under this Agreement (and amounts due under clause 8.8) or, upon the
occurrence of an Event of Default in respect of which notice has been
given pursuant to clause 14.2, against any amounts due and payable
under the Finance Documents.
8.7 Revolving Credit Advances
Any prepayment of Revolving Credit Advances under this Agreement shall
be applied firstly in prepayment of Revolving Credit Advances
outstanding prior to the Restructuring Date (or any rollover of such
Advances) and then in prepayment of all other outstanding Revolving
Credit Advances.
8.8 Amounts payable on prepayment
Any prepayment under this Agreement shall be made in the currency in
which the relevant Advance or Utilisation is then denominated together
with: (a) accrued interest to the date of prepayment; (b) any
additional amount payable under clauses 10.5, 16.2 or 16.5; (c) all
other sums payable by the Borrowers to the relevant Bank Finance
Parties under this Agreement including, without limitation, any
accrued commitment commission payable under clause 9.1.3 and any
amounts payable under clause 15.1; and (d) where the Facilities are
prepaid and cancelled in full, the fees in clause 9.1.8 and 9.1.9
together with the interest accrued thereon.
8.9 Notice of prepayment
No prepayment may be effected under clause 8.4 or 8.5 unless the
relevant Borrower shall have given the Agent at least 5 Banking Days'
notice of its intention to make such prepayment. Every notice of
prepayment shall be effective only on actual receipt by the Agent,
shall be irrevocable and shall oblige the relevant Borrower to make
such prepayment on the date specified.
8.10 Cancellation of Commitments
The Parent may at any time during the Availability Period in respect
of the Revolving Credit Facility by notice to the Agent (effective
only on actual receipt) cancel with effect from a date not less than 5
Banking Days after the receipt by the Agent of such notice the whole
or any part (being (pound)5,000,000 or any larger sum which is an
integral multiple of (pound)1,000,000) of the Total Commitments
without penalty. Any such notice of cancellation, once given, shall be
irrevocable and upon such cancellation taking effect the Commitment of
each Bank shall be reduced proportionately.
8.11 Allocation of reduction of commitments
If the Total Commitments are to be reduced or cancelled in part (but
not in whole) pursuant to any provision of this Agreement (except for
cancellation of Commitments under clause 8.6) such reduction shall be
allocated against the Revolving Credit Facility, the Swingline
Facility and the Overdraft Facility as the Parent shall specify and
the Commitment of each Bank shall be reduced proportionately.
39
8.12 Prepayments to be subject to the terms of the Intercreditor Agreement
For so long as the lntercreditor Agreement remains valid and binding,
the amount of all prepayments made pursuant to clauses 8.4, 8.5, and
8.6 must first be paid over to the Common Security Trustee for
application in accordance with the terms of the Intercreditor
Agreement, and the amount of such prepayments paid for the benefit of
the Bank Finance Parties from such application by the Common Security
Trustee shall then be applied in prepayment and cancellation of the
Facilities in accordance with the terms of clause 8.
9 Fees and expenses
9.1 Fees
The Parent shall pay to the Agent whether or not any Advance is drawn
or any Utilisation made:
9.1.1 Arrangement fee: [deleted];
9.1.2 Agency fee: for the account of the Agent, an agency fee of an amount
and on the basis agreed between the Parent and the Agent in a letter
dated on or around the date of the Restructuring Deed;
9.1.3 Commitment Commission:
(a) on the dates falling at three month intervals after the date of
this Agreement and on the last day of the Availability Period in
respect of the Revolving Credit Facility, for the account of each
Bank, commitment commission computed at 1.25% per annum on the
daily undrawn and uncancelled amount of such Bank's Commitment in
respect of the Revolving Credit Facility; and
(b) if a Revolving Credit Advance is outstanding in an Optional
Currency, the amount of the Commitments treated as drawn for the
purpose of calculating commitment commission shall be the
Sterling Amount of such Revolving Credit Advance;
9.1.4 Conversion fee: [deleted]
9.1.5 Swingline Bank fee: on the dates falling at quarterly intervals after
the date of the Restructuring Deed and on the Termination Date in
respect of the Revolving Credit Facility, for the account of the
Swingline Bank, a Swingline Bank fee and Swingline Letter of Credit
fee of amounts agreed between the Parent and the Swingline Bank in a
letter dated on or around the date of the Restructuring Deed;
9.1.6 Overdraft Bank fee: on the dates falling at quarterly intervals after
the date of this Agreement and on the Termination Date in respect of
the Revolving Credit Facility, for the account of the Overdraft Bank,
an Overdraft Bank fee of an amount agreed between the Parent and the
Overdraft Bank in a letter dated 4 July 2000 (and on and from the
Restructuring Date the reference in such letter to clause 9.1.8 of
this Agreement shall be deemed to refer to clause 9.1.6 of this
Agreement);
9.1.7 Common Security Trustee Fee: for the account of the Common Security
Trustee, a trustee fee of an amount and on the basis agreed between
the Parent and the Common Security Trustee in a letter dated on or
around the date of the Restructuring Deed;
9.1.8 Deferred fee: on 8 November 2004 or on such earlier date (if any) on
which (i) an Event of Default occurs or (ii) the Total Commitments are
reduced to zero under or pursuant to this Agreement, for the account
of the Banks (pro-rata to their Commitments in respect of the
Revolving Credit Facility), a deferred fee in Sterling which shall
accrue quarterly in arrears from the date of the execution of the
Agreement in Principle and shall be calculated at 1.00% of the
Sterling Amount of the average daily principal outstanding amount
(including any Outstanding L/C Liability) under the Facilities during
the two most recent quarters, together
40
with interest on such deferred fee which shall accrue at 9.25% per
annum on the amount of each quarterly accrual of the deferred fee; and
9.1.9 PIK Management fee: for the account of the Banks (pro rata to their
Commitments) a management fee ("P1K Management Fee") paid in Sterling
as follows:
(a) the P1K Management Fee shall be calculated at the end of each
Quarter as a percentage rate (the "Rate") of the average daily
principal outstandings under the Facilities (including the amount
of any Outstanding L/C Liability) during the two most recent
Quarters;
(b) the Rate to be applied at the end of each Quarter shall be
determined according to the ratio of Consolidated Gross
Borrowings to Consolidated EBITDA as set out in the table below:
Quarter Ending Consolidated Gross Borrowings : Consolidated EBITDA
March 2002 less than greater than greater than greater than greater than
or equal to 4.60 4.84 5.08 5.32
4.60 but less than but less than but less than
or equal to or equal to or equal to
4.84 5.08 5.32
June 2002 less than greater than greater than greater than greater than
or equal to 6.25 6.81 7.38 7.94
6.25 but less than but less than but less than
or equal to or equal to or equal to
6.81 7.38 7.94
September 2002 less than greater than greater than greater than greater than
or equal to 3.56 3.84 4.13 4.41
3.56 but less than but less than but less than
or equal to or equal to or equal to
3.84 4.13 4.41
December 2002 less than greater than greater than greater than greater than
or equal to 3.37 3.71 4.06 4.40
3.37 but less than but less than but less than
or equal to or equal to or equal to
3.71 4.06 4.40
March 2003 less than greater than greater than greater than greater than
or equal to 3.40 3.59 3.77 3.96
3.40 but less than but less than but less than
or equal to or equal to or equal to
3.59 3.77 3.96
June 2003 less than greater than greater than greater than greater than
or equal to 3.28 3.40 3.52 3.63
3.28 but less than but less than but less than
or equal to or equal to or equal to
3.40 3.52 3.63
September 2003 less than greater than greater than greater than greater than
or equal to 3.22 3.35 3.49 3.62
3.22 but less than but less than but less than
or equal to or equal to or equal to
3.35 3.49 3.62
December 2003 less than greater than greater than greater than greater than
or equal to 2.89 3.02 3.15 3.27
2.89 but less than but less than but less than
or equal to or equal to or equal to
3.02 3.15 3.27
March 2004 less than greater than - - -
or equal to 2.89
2.89 but less than
or equal to
3.00
June 2004 less than greater than - - -
or equal to 2.70
2.70 but less than
or equal to
3.00
September 2004 less than greater than - - -
or equal to 2.70
2.70 but less than
or equal to
2.75
Rate 0.00% 0.50% 1.00% 1.50% 2.00%
(c) for the purposes of paragraph (b) Consolidated Gross Borrowings
and Consolidated EBITDA shall be calculated in accordance with
clause 13 and the ratio of Consolidated Gross Borrowings to
Consolidated EBITDA shall be tested by reference to the Quarterly
Management Accounts and the related Compliance Certificate in
respect of the relevant Quarter delivered to the Agent pursuant
to clauses 12.1.6(a) and (d), provided that if the Audited
Financial Statements and the related Auditor's Report for any
Financial Year delivered in accordance with clauses 12.1.6(a) and
(e) show different determinations for those Financial Definitions
than those shown in the Quarterly Management Accounts for the
last Quarter in that Financial Year, such Audited Financial
Statements shall prevail in respect of such determinations;
(d) the PIK Management Fee shall accrue at the end of each Quarter in
accordance with paragraphs (a) to (c) above (subject to paragraph
(e) below), but shall not be payable until the earliest of (the
"PIK Management Fee Payment Date"):
(i) the reduction to zero of the Total Commitments in accordance
with the terms of this Agreement;
41
(ii) the prepayment in full of the Notes;
(iii) any enforcement of any of the Security Documents;
(iv) the occurrence of any Event of Default specified in clauses
14.1.9 (Insolvency) to 14.1.15 (Analogous proceedings)
(inclusive);
(v) any of the Notes becoming due and payable, whether
automatically or by declaration; and
(vi) 8 November 2004;
(e) to the extent that the "New Money Commitments" (as defined in the
lntercreditor Agreement) are repaid and cancelled in full at any
time or all of the Bank Finance Parties agree to terminate the
priority treatment of such New Money Commitments under the terms
of the lntercreditor Agreement at any time, any future accretion
of the PIK Management Fee shall cease at the later of any of
those times and 1 January 2003, provided that any PIK Management
Fee that has been calculated for any Quarter prior to such time
shall continue to payable on the PIK Management Fee Payment Date
and will continue to accrue interest in accordance with paragraph
(f) below; and
(f) Interest shall accrue on the amount of each quarterly accrual of
the PIK Management Fee at a rate of 9.25% per annum and shall be
payable on the PIK Management Fee Payment Date.
9.2 Expenses
The Parent shall pay to the Agent on demand:
9.2.1 all reasonable expenses (including legal, printing and out-of-pocket
expenses) incurred by the Bank Finance Parties in connection with the
negotiation, preparation and execution of the Bank Finance Documents,
the preparation and distribution of the Information Package and any
Information Memorandum and of any amendment or extension of, or the
granting of any waiver or consent under, the Bank Finance Documents;
and
9.2.2 all expenses (including legal and out-of-pocket expenses) incurred by
the Finance Parties or any of them in contemplation of, or otherwise
in connection with, the enforcement or attempted enforcement of, or
preservation or attempted preservation of any rights under, any Bank
Finance Document (including, without limitation, the fees and expenses
of accountants or other experts incurred in relation to any
investigation into the affairs of the Group provided that if a Default
has not occurred and no notification has been made under clause 12.1.8
such fees shall not be payable by the Parent) or otherwise in respect
of the moneys owing under any Bank Finance Document, together with
interest at the rate referred to in clause 5.5 from the date on which
such expenses were notified to the Parent to the date of payment (as
well after as before judgment).
9.3 Value Added Tax (VAT)
All fees and expenses payable pursuant to this clause 9 shall be paid
together with an amount equal to any value added tax payable by the
Bank Finance Parties in respect of such fees and expenses to the
extent that the Bank Finance Parties are not able to recover such
Value Added Tax. Any value added tax chargeable in respect of any
services supplied by the Bank Finance Parties under this Agreement
shall, on delivery of a value added tax invoice, be paid in addition
to any sum agreed to be paid under this Agreement.
42
9.4 Stamp and other duties
The Parent shall pay all stamp, documentary, registration or other
similar duties or Taxes (including any duties or Taxes (other than
Taxes on overall net income of the Bank Finance Parties) payable by,
or assessed on, the Bank Finance Parties) imposed on or in connection
with the Bank Finance Documents or the Facilities and shall indemnify
the Bank Finance Parties against any liability arising by reason of
any delay or omission by the Borrowers to pay such duties or Taxes
save for any stamp duty payable as a result of any transfer pursuant
to clause 18.
10 Payments and Taxes; accounts and calculations
10.1 No set-off or counterclaim; distribution to the Banks
Subject to clauses 10.5 and 10.6, all payments to be made by the
Borrowers under the Bank Finance Documents shall be made in full,
without any set-off or counterclaim whatsoever and free and clear of
any deductions or withholdings, in Sterling or the relevant Optional
Currency (except for costs, charges or expenses which shall be payable
in the currency in which they are incurred) on the due date in
immediately available cleared funds to the account of the Agent, the
Swingline Bank or the Overdraft Bank (as relevant) at such bank as the
Agent, the Swingline Bank or the Overdraft Bank (as relevant) may from
time to time specify for this purpose. Save where the Bank Finance
Documents provide for a payment to be made for the account of a
particular Bank (including, without limitation, clauses 8.5, 10.5,
15.1, 15.2, 16.1 and 16.2 in which case the Agent shall distribute the
relevant payment to the Bank concerned, or for the account of the
Swingline Bank or the Overdraft Bank), payments to be made by the
Borrowers under the Bank Finance Documents shall be for the account of
all the Banks and the Agent shall forthwith distribute such payments
in like funds as are received by the Agent to the Banks rateably in
accordance with their Commitments or Contributions, as the case may
be.
10.2 Payments by the Banks
All sums to be advanced by the Banks to the Borrowers under this
Agreement shall be remitted in Sterling or the relevant Optional
Currency in immediately available cleared funds on the relevant
Drawdown Date to the account of the Agent at such bank as the Agent
may have notified to the Banks and shall be paid by the Agent on such
date in like funds as are received by the Agent to the account of the
relevant Borrower specified in the relevant Drawdown Notice.
10.3 Non-Banking Days
When any payment under this Agreement would otherwise be due on a day
which is not a Banking Day, the due date for payment shall be
postponed to the next following Banking Day unless such Banking Day
falls in the next calendar month in which case payment shall be made
on the immediately preceding Banking Day.
10.4 Agent may assume receipt
Where any sum is to be paid under this Agreement to the Agent for the
account of another person, the Agent may assume, unless it has been
notified to the contrary in writing, that the payment will be made
when due and may (but shall not be obliged to) make such sum available
to the person so entitled. If it proves to be the case that such
payment was not made to the Agent, then the person to whom such sum
was so made available shall on request refund such sum to the Agent
together with interest thereon sufficient to compensate the Agent for
the cost of making available such sum up to the date of such repayment
and the person by whom such sum was payable shall indemnify the Agent
for any and all loss or expense which the Agent may sustain or incur
as a consequence of such sum not having been paid on its due date.
43
10.5 Grossing-up for Taxes
If at any time any Borrower is required to make any deduction or
withholding in respect of Taxes (excluding Taxes or Taxation on the
overall net income, profits or gains of a Bank Finance Party imposed
in the jurisdiction in which its principal or lending office under the
Agreement is located) from any payment due under this Agreement and/or
the Security Documents for the account of any Bank Finance Party (or
if the Agent is required to make any such deduction or withholding
from a payment to any Arranger or a Bank), the sum due from the
relevant Borrower in respect of such payment shall, subject to clause
10.6, be increased to the extent necessary to ensure that, after the
making of such deduction or withholding, each Bank Finance Party
receives on the due date for such payment (and retains, free from any
liability in respect of such deduction or withholding) a net sum equal
to the sum which it would have received had no such deduction or
withholding been required to be made and that Borrower shall indemnify
(on an after-tax basis) each Bank Finance Party against any losses or
costs incurred by any of them by reason of any failure of that
Borrower to make any such deduction or withholding or by reason of any
increased payment not being made on the due date for such payment,
save only to the extent that such failure by that Borrower is
attributable to a breach by a Bank Finance Party of the warranty in
clause 10.7 or of its obligation promptly to notify that Borrower of a
change in its status pursuant to clause 10.7. Such Borrower shall
promptly deliver to the Agent any receipts, certificates or other
proof evidencing the amounts (if any) paid or payable in respect of
any such deduction or withholding (other than a deduction or
withholding made by the Agent).
10.6 Exceptions to gross-up
10.6.1 If any Bank is not or ceases to be a Qualifying Bank then (save in
circumstances where such Bank ceases to be a Qualifying Bank by reason
of any change in law or regulation or double taxation treaty or in its
application or interpretation, in each case taking effect after the
date of this Agreement) the Borrowers shall not be liable to pay to
that Bank under clause 10.5 any sum in excess of the sum they would
have been obliged to pay if that Bank had been, or had not ceased to
be, a Qualifying Bank.
10.6.2 Subject to clause 10.8.3, no US Borrower shall be required to pay any
additional amount on account of any taxes of, or imposed by, the
United States pursuant to clause 10.5 to any Bank if such Bank is not
entitled on the date on which it becomes a party to this Agreement to
submit Internal Revenue Service Form W-8BEN (with respect to a
complete exemption under an income tax treaty) (or any successor
thereto) or Internal Revenue Service Form W-8ECI (or any successor
thereto) so as to meet its obligations to submit such a form or other
certificate pursuant to clause 10.8 or if such Bank otherwise fails to
submit such a form or certificate that it is required to submit
pursuant to clause 10.8.
10.6.3 Any Bank which is a Qualifying Bank by virtue of being a Treaty Lender
shall, as soon as reasonably practicable and permissible after it
becomes a party to this Agreement submit to the relevant tax
authorities in the country of residence of such Bank the relevant form
required for the purpose of obtaining a direction from the Inland
Revenue or any equivalent tax authority, that payment may be made by
each relevant Borrower or (as the case may require) the Agent to such
Lender (i) in the case of an Existing Bank, without any deduction or
withholding in respect of tax or (ii) in the case of a Substitute,
subject to a withholding or deduction in respect of tax to an extent
no greater than that which applied at the time of the substitution to
the Existing Bank from which the Substitute acquired its Commitment
and/or Contribution and if any Bank fails to comply with such
obligation the Borrower shall not be obliged to pay to such Bank under
clause 10.5 any sum in excess of the sum which it would have been
required to pay to such Bank had it complied with the obligation in
this clause 10.6.3.
10.6.4 No Bank is obliged to deliver any form or declaration under ▇▇▇▇▇
10.6.3 if the Bank is unable to complete the form or declaration in a
manner which will enable the Borrower to make payment to that Bank
without deduction or withholding in respect of Taxes in the relevant
jurisdiction as a result of the introduction of or any change in or in
the interpretation or application by any relevant authority of, any
law, treaty or regulation or any practice, position or concession of
the relevant tax authority after the date of this Agreement.
44
10.6.5 If any forms previously delivered under clause 10.8.2 or sub-paragraph
(i) or (ii) of the definition of US Lender shall have expired, become
obsolete, invalid or inaccurate in any respect which has resulted in
the loss of any applicable exemption from withholding and, (except
where the reason for such obsolescence, invalidity or inaccuracy is a
change in, or in the interpretation or application of, or the
introduction of any law or regulation in each case after the date of
this Agreement) following not less than thirty days' prior written
notice from each relevant US Borrower to the Agent (as to such bank or
financial institution), such bank or financial institution shall not
have delivered to the Agent and such Borrower one or more then
currently effective forms described under such sub-paragraph (i) or
(ii), the relevant US Borrower shall not be obliged to pay such Bank
under clause 10.5 any sum in excess of the sum which it would have
been required to pay to such Bank had such forms not become obsolete,
invalid or inaccurate in which case this clause 10.6.5 shall not apply
to such US Lender.
10.7 Qualifying Banks
Each Bank agrees promptly to notify the Agent and the Borrowers if it
ceases, or intends to cease, to be a Qualifying Bank, or, if it
derives its status, or intends to derive its status, as a Qualifying
Bank from a different paragraph or sub paragraph of the definition of
Qualifying Bank.
10.8 US Tax forms
10.8.1 Except as otherwise agreed by the Parent, each Bank (other than a Bank
organised under the federal laws of, or the laws of any of, the United
States of America or the District of Columbia) shall, subject to
paragraph (c) below, deliver to each US Borrower and the Agent within
30 days from the date it becomes a party to this Agreement (and prior
to the expiry of any such form previously provided by that Bank), two
accurate and complete original signed copies of US Internal Revenue
Service Form W-8BEN (with respect to a complete exemption under an
income tax treaty) or W-8ECI, whichever is applicable or any successor
or additional form allowing the US Borrower to make payments to that
Bank without deduction or withholding in respect of federal income tax
in the United States of America provided that W-8BEN or W-8ECI (or
successor forms) shall be delivered no later than the first Repayment
Date after the relevant Bank becomes a party to this Agreement.
10.8.2 Except as otherwise agreed by the Parent, each Bank that is organised
under the federal laws of, or the laws of any of, the United States of
America or the District of Columbia shall, subject to paragraph (c)
below, deliver to each US Borrower and the Agent within 30 days from
the date it becomes a party to this Agreement (and prior to the expiry
of any such form previously provided by the Bank) two accurate and
complete original copies of duly executed US Internal Revenue Service
Forms W-9 or any successor to such form.
10.8.3 No Bank is obliged to deliver any form(s) under clause 10.6.2 or
clauses 10.8.1 or 10.8.2 above if the Bank is unable to complete the
form(s) in a manner which will enable the US Borrower to make payments
to that Bank without deduction or withholding in respect of Taxes in
the United States of America as a result of the introduction of or any
change in, or in the interpretation or application by any relevant
authority of, any law, treaty or regulation or any practice, position
or concession of the US Internal Revenue Service after the date of
this Agreement.
10.8.4 The Agent agrees that it will furnish on the date of this Agreement
(and prior to the expiry of any such form previously provided by the
Agent) to each US Borrower, with respect to fees payable to it, two
accurate and complete original signed copies of either (i) Internal
Revenue Service Forms W-8ECI (or successor form) (if the services are
performed by a US branch), or (ii) a statement that the services will
be performed entirely outside the US, or, if appropriate, Internal
Revenue Service Form W-8BEN (establishing a complete exemption under
an income tax treaty) with respect to those services.
45
10.9 Claw-back of tax benefit
If following any such deduction or withholding as is referred to in
clause 10.5 any Bank shall receive or be granted a credit against or
remission for any Taxes payable by it, such Bank shall, where it is
able to utilise such credit or remission, subject to the relevant
Borrower having made any increased payment in accordance with clause
10.5 and to the extent that such Bank can do so without prejudicing
the retention of the amount of such credit or remission and without
prejudice to the right of such Bank to obtain any other relief or
allowance which may be available to it, reimburse the Borrower with
such amount as the Bank shall in its absolute discretion (acting in
good faith) certify to be the proportion of such credit or remission
as will leave that Bank (after such reimbursement) in no worse
position than it would have been in had there been no such deduction
or withholding from the payment by the Borrower. Such reimbursement
shall be made forthwith upon such Bank certifying that the amount of
the credit or remission has been received by it. Nothing contained in
this Agreement shall oblige any Bank to rearrange its tax affairs or
to disclose any information regarding its tax affairs and
computations. Without prejudice to the generality of the foregoing, no
Borrower shall, by virtue of this clause 10.9, be entitled to enquire
about any Bank's tax affairs.
10.10 Bank accounts
Each Bank, the Swingline Bank and the Overdraft Bank, shall maintain,
in accordance with its usual practices, an account or accounts
evidencing the amounts from time to time lent by, owing to and paid to
it under this Agreement. The Agent shall maintain a control account
showing each Revolving Credit Advance and other sums owing by the
Borrowers under this Agreement and all payments in respect thereof
made by the Borrowers from time to time. The control account for the
Overdraft Facility shall be maintained by the Overdraft Bank and the
control account for the Swingline Facility shall be maintained by the
Swingline Bank. The control accounts shall, in the absence of manifest
error, be prima facie evidence of the amount from time to time owing
by the Borrowers under this Agreement.
10.11 Partial payments
If, on any date on which a payment is due to be made by the Borrowers
under the Bank Finance Documents, the amount received by the Agent
from the Borrowers or the Common Security Trustee (after application
in accordance with the Intercreditor Agreement) falls short of the
total amount of the payment due to be made by the Borrowers on such
date then, without prejudice to any nghts or remedies available to the
Agent and the Banks under the Bank Finance Documents, the Agent shall
apply the amount actually received from the Borrowers in or towards
discharge of the obligations of the Borrowers under this Agreement in
the following order, notwithstanding any appropriation made, or
purported to be made, by the Borrowers:
10.11.1 firstly, in or towards payment, on a pro rata basis, of any unpaid
fees, costs and expenses of the Agent and/or the Security Trustee
and/or the Common Security Trustee under the Bank Finance Documents;
10.11.2 secondly, in or towards payment to the Arrangers of any portion of the
arrangement fee payable under clause 9.1.1 remains unpaid;
10.11.3 thirdly, in or towards payment to the Swingline Bank and the Overdraft
Bank, on a pro rata basis, of any Swingline Bank Fee and Overdraft
Bank Fee payable under clauses 9.1.5 and 9.1.6 which remains unpaid;
10.11.4 fourthly, in or towards payment to the Banks, on a pro rata basis, of
any accrued commitment commission payable under clause 9.1.3 which
shall have become due and payable but remains unpaid;
10.11.5 fifthly, in or towards payment to the Banks, the Swingline Bank and
the Overdraft Bank, on a pro rata basis, of any accrued interest or
Swingline Letter of Credit Commission which shall have become due and
payable but remains unpaid;
46
10.11.6 sixthly, in or towards payment to the Banks, the Swingline Bank and
the Overdraft Bank, on a pro rata basis, of any principal which shall
have become due and payable but remains unpaid; and
10.11.7 seventhly, in or towards payment of any other sum which shall have
become due but remains unpaid (and, if more than one such sum so
remains unpaid, on a pro rata basis).
The order of application set out in this clause 10.11.4 - 10.11.7
shall be varied by the Agent if the Banks so direct, without any
reference to, or consent or approval from, the Borrowers.
10.12 Calculations
All interest and other payments of an annual nature under this
Agreement shall accrue from day to day and be calculated on the basis
of actual days elapsed and (in the case of Sterling) a 365 day year
and (in the case of currencies other than Sterling) a 360 day year. In
calculating the actual number of days elapsed in a period which is one
of a series of consecutive periods with no interval between them or a
period on the last day of which any payment falls to be made in
respect of such period, the first day of such period shall be included
but the last day excluded.
10.13 Certificates
Any certificate or determination of any Bank Finance Party as to any
rate of interest or any amount payable under this Agreement shall, in
the absence of manifest error, be prima facie evidence of the rate of
interest or amount payable.
10.14 Effect of monetary union
If the country of any national currency in which any amount is
expressed to be payable under this Agreement participates in Economic
and Monetary Union in accordance with Article 109j of the Treaty,
then:
10.14.1 any amount expressed to be payable under this Agreement in that
national currency shall be made in that national currency or in euro,
as designated by the Agent after consultation with the Parent and the
Banks;
10.14.2 any amount so required to be paid in euro shall be converted from that
national currency at the rate stipulated pursuant to Article 109l(4)
of the Treaty and payment of the amount in euro derived from such
conversion shall discharge the obligation of the relevant party to pay
such national currency amount in accordance with, and subject to, the
Regulation(s) made pursuant to Article 109l(4) of the Treaty;
10.14.3 after consultation with the Parent and the Banks the Agent shall be
entitled to make such amendments to this Agreement as necessary to
take account of monetary union and any consequent changes in market
practices (whether as to the settlement or rounding of obligations,
the calculation of interest or otherwise howsoever) provided that such
amendments will not create obligations for the Borrowers which have an
overall financial impact that is materially more onerous than the
obligations created by this Agreement.
Any amendment so made to this Agreement by the Agent shall be promptly
notified to the Banks and the Parent by the Agent and shall be binding
on all the Bank Finance Parties and all the Borrowers.
10.15 Continuation of the Conversion Advance in Sterling or euros
[deleted]
47
11 Representations and warranties
11.1 Representations and warranties
Each Borrower makes the following representations and warranties to
each of the Bank Finance Parties:
11.1.1 Due incorporation: the Obligors and the Material Subsidiaries are duly
established or incorporated (and in the case of a corporation
incorporated in the United States, validly existing and in good
standing) under the laws of the respective countries and/or (where
relevant) states of their incorporation as limited liability companies
(except for CCG.XM) and have power to carry on their respective
businesses as they are now being conducted and to own their respective
property and other assets;
11.1.2 Corporate Power: each Obligor has power to execute, deliver and
perform its obligations under each of the Bank Finance Documents to
which it is a party and (in the case of the Borrowers) to borrow the
Commitments; all necessary corporate, shareholder and other action has
been taken (or, in the case of the Security Documents, will be taken
prior to their execution) to authorise the execution, delivery and
performance of the same and no limitation on the powers of the
Borrowers to borrow will be exceeded as a result of borrowings under
this Agreement or on the powers of the Guarantors to give guarantees
will be exceeded as a result of the Guarantees;
11.1.3 Binding obligations: this Agreement constitutes and the other Bank
Finance Documents, when executed and delivered will constitute, valid
and legally binding obligations of each Obligor which is a party
thereto enforceable in accordance with their respective terms, save as
disclosed in the qualifications to the relevant legal opinions
provided under part A of Schedule 4 (as stated prior to the
Restructuring Date) and under Schedule 5 of the Restructuring Deed;
11.1.4 No conflict with other obligations: the execution and delivery of, the
borrowing of the Commitments and the performance of their obligations
under, and compliance with the provisions of, the Bank Finance
Documents by the Obligors will not (i) contravene, to any material
extent, any existing applicable law, statute, rule or regulation or
any judgment, decree or permit to which any of them are subject, (ii)
conflict with, to any material extent, or result in any breach of any
of the material terms of, or constitute a material default under, any
agreement or other instrument to which any of them are a party or is
subject or by which any of their property is bound, (iii) contravene
or conflict with any provision of their respective Memorandum and
Articles of Association, Articles of Incorporation, Bye-laws, Statutes
or other constitutional documents or (iv) result in the creation or
imposition of or oblige any of them to create any Encumbrance (other
than a Permitted Encumbrance) on any of their undertakings, assets,
rights or revenues;
11.1.5 Consents obtained: (subject, in the case of the Security Documents, to
the registration and filing requirements (if any) disclosed in the
qualifications to the legal opinions provided under Schedule 5 of the
Restructuring Deed) every material consent from, authorisation,
licence or approval of, or registration with or declaration to,
governmental or public bodies or authorities or courts required by any
Obligor to authorise, or required by any Obligor in connection with,
the execution, delivery, validity, enforceability or admissibility in
evidence of any of the Bank Finance Documents to which it is a party
or the performance by any Obligor of its obligations under any of the
Bank Finance Documents to which it is a party has been obtained or
made (or, in the case of the Security Documents, will be obtained or
made, as the case may be, prior to their execution) and is (or will
be) in full force and effect in all material respects and there has
been no default in the observance of the material conditions or
restrictions (if any) imposed in, or in connection with, any of the
same;
48
11.1.6 No filings required: (subject, in the case of the Security Documents,
to the registration and filing requirements (if any) disclosed in the
qualifications to the legal opinions provided under Schedule 5 of the
Restructuring Deed) any notarisation, filing, recording, registration
or enrolment in any court, public office or elsewhere and any stamp,
registration or similar tax or charge payable on or in relation to any
of the Bank Finance Documents necessary to ensure the legality,
validity, enforceability or admissibility in evidence of any of the
Bank Finance Documents has been made or paid, as the case may be (or,
in the case of the Security Documents, will be made or paid, as the
case may be, prior to their execution), and the Bank Finance Documents
are in proper form for their enforcement in the courts of England or
of any jurisdiction whose laws are expressed to govern the relevant
Security Document;
11.1.7 No litigation: no litigation, arbitration or administrative proceeding
is taking place, pending or, to the knowledge of the directors of any
Obligor or Material Subsidiary, threatened against any member of the
Group which would or is reasonably likely, in the opinion of the Agent
(acting reasonably), if adversely determined to have a Material
Adverse Effect;
11.1.8 No defaults: no member of the Group is (nor would with the giving of
notice or lapse of time or the satisfaction of any other condition or
any combination thereof be) in breach of or in default under any
agreement relating to Borrowed Money to which it is a party or by
which it may be bound (unless the aggregate principal amount of the
Borrowed Money pursuant to the agreements which have been breached is
less than or equal to (pound)1,000,000 or the equivalent in the
currencies in which the sums are payable) and no other Default has
occurred and is continuing;
11.1.9 Financial statements correct and complete: the then latest audited
consolidated financial statements of the Group in respect of the
relevant Financial Year as delivered to the Agent under clause 12.1.6
have been prepared in accordance with the Appropriate Accounting
Principles which have been consistently applied and present fairly and
accurately the consolidated financial position of the Group as at the
date to which such financial statements were made up and the
consolidated results of the operations of the Group for the relevant
Financial Year ended on such date and, as at such date, no member of
the Group had any significant liabilities (contingent or otherwise) or
any losses which are required to be and which are not disclosed by, or
reserved against or provided for in, such financial statements;
11.1.10 Choice of law: the choice by the relevant Obligors of English law to
govern the Bank Finance Documents to which they are a party (to the
extent that the same are expressed to be governed by English law) and
the submission by the relevant Obligors to the non-exclusive
jurisdiction of the High Court of Justice in England (to the extent
that the relevant Obligors so submit) are valid and binding;
11.1.11 No withholding Taxes: (on the basis that all Banks are Qualifying
Banks at the Restructuring Date and that any Bank required to do so
and the Agent has provided the requisite tax forms pursuant to clauses
10.6 and 10.8) no Taxes are imposed by withholding or otherwise on any
payment to be made by any Obligor under the Bank Finance Documents or
are imposed on or by virtue of the execution or delivery by any
Obligor of the Bank Finance Documents to which it is a party or any
document or instrument to be executed or delivered under the Bank
Finance Documents to which it is a party;
11.1.12 Compliance with consents and licences: every material consent,
authorisation, licence or approval required by any Obligor or Material
Subsidiary in connection with the conduct of its business and the
ownership, use, exploitation or occupation of their respective
property and assets has been obtained and is in full force and effect
in all material respects and there has been no default in the
observance of any of the material conditions and restrictions (if any)
imposed in, or in connection with, any of the same and, to the
knowledge of the directors of each Obligor or Material Subsidiary, no
circumstances have arisen whereby any material remedial action is
likely to be required to be taken by, or at the expense of, any
Obligor or Material Subsidiary under or pursuant to any law or
regulation applicable to the business, property or assets of any
Obligor or Material Subsidiary;
49
11.1.13 Ownership of assets: all assets which are necessary for the business
of the Group are beneficially owned, licensed or leased by the
relevant members of the Group free and clear of any Encumbrance other
than a Permitted Encumbrance;
11.1.14 Group Structure Charts: set forth in the Group Structure Charts is a
substantially complete and accurate representation of the structure
and members of the Group as at the date of the Restructuring Deed and
the Restructuring Date;
11.1.15 Margin stock: no member of the Group is engaged principally or as one
of its major activities in the business of extending credit for the
purpose of purchasing or carrying margin stock and none of the
proceeds of any drawing under any of the Facilities will be or has
been used, directly or indirectly, to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or
carrying margin stock;
11.1.16 Not an investment company: (in the case of each US Borrower) it is not
an "investment company" as defined in the United States Investment
Company Act of 1940 nor is it subject to any United States federal or
state statute or regulation limiting its ability to incur Borrowed
Money;
11.1.17 ERISA: none of the Parent or the ERISA Affiliates are making or
accruing an obligation to make contributions or has within any of the
five calendar years immediately preceding the date of this Agreement
made or accrued an obligation to make contributions to any
Multiemployer Plan; each Plan is in compliance in all material
respects with ERISA and the Code; each of the Parent and the ERISA
Affiliates has made all contributions except as would not result in a
material liability to or under each such Plan required by law within
the applicable time limits prescribed thereby, the terms of such Plan,
or any contract or agreement requiring contributions to a Plan, no
ERISA Event has occurred, and neither the Parent nor any of the ERISA
Affiliates has incurred or reasonably expects to incur any material
liability to PBGC other than for premiums;
11.1.18 Intellectual Property Rights
(a) the Intellectual Property Rights owned by any member of the Group
which are material in the context of the Group as a whole are
free from any Encumbrance other than Permitted Encumbrances and
any other rights or interests in favour of third parties (save
for those permitted by this Agreement) and any other Intellectual
Property Rights owned by any member of the Group are free from
any Encumbrance and any other rights or interests in favour of
third parties other than Permitted Encumbrances, save as
permitted either in the ordinary course of business or which
would not or are not reasonably likely to otherwise have a
Material Adverse Effect and save for those created or to be
created by or pursuant to the Security Documents or permitted by
this Agreement;
(b) the Intellectual Property Rights owned by or licensed to each
member of the Group are all the Intellectual Property Rights
required by them to carry on their respective businesses, other
than Intellectual Property Rights the absence of rights to which
would have no Material Adverse Effect and no member of the Group
in carrying on its business (so far as the directors of the
Parent are aware) infringes any Intellectual Property Rights of
any third party in any respect where such infringement would
have, or is reasonably likely (in the opinion of the Agent acting
on the instructions of the Majority Banks, acting reasonably) to
have, a Material Adverse Effect;
(c) no Intellectual Property Rights which are material in the context
of the Group as a Whole owned by any member of the Group are, to
the knowledge of the directors of the Parent, being infringed,
which infringement would have, or is reasonably likely (in the
opinion of the Agent acting on the instructions of the Majority
Banks, acting reasonably) to have, a Material Adverse Effect; and
50
(d) no member of the Group has any knowledge, nor is it aware of any
claim, that it is or is reasonably likely to be liable to any
person for any material copyright infringement of any nature
whatsoever as a result of the operation of its business, which
infringement would have, or is reasonably likely (in the opinion
of the Agent acting on the instructions of the Majority Banks,
acting reasonably) to have, a Material Adverse Effect;
11.1.19 Material Adverse Effect: since the date of Accountant's Report there
has been no development or event which has had or, in the opinion of
the Agent (acting on the instructions of the Majority Banks, acting
reasonably) is reasonably likely to have a Material Adverse Effect;
11.1.20 Lighthouse Due Diligence: [deleted]
11.1.21 Environmental matters:
(a) the Parent is in compliance with the undertakings set out in
clause 12.1.21, in each case in respect of all members of the
Group;
(b) no member of the Group has received notice of any Environmental
Claim and no member of the Group is in breach of any
Environmental Law or any Environmental Licence to the extent that
the same would be reasonably likely in the opinion of the Agent
(acting reasonably) to have a Material Adverse Effect; and
(c) there is no Environmental Claim pending or to the knowledge of
the directors of any Obligor or a Material Subsidiary threatened
against any member of the Group which, if adversely to its
knowledge determined, would be reasonably likely in the opinion
of the Agent (acting reasonably) to have a Material Adverse
Effect;
11.1.22 Unaudited financial statements: the latest unaudited Quarterly
Management Accounts and Monthly Management Accounts delivered to the
Agent under clauses 12.1.6(b) and 12.1.6(c) have been prepared in
accordance with the Appropriate Accounting Principles which have been
consistently applied and present accurately in all material respects
the results of the operations of, and the consolidated (or
unconsolidated as applicable) financial position of the Group for and
as at the end of, the period to which they relate;
11.1.23 Charged Assets: the assets listed in relevant schedules to the
Security Documents are beneficially owned by the relevant Guarantors
as indicated in the relevant schedule, are not subject to any
Encumbrance (other than a Permitted Encumbrance) and such lists are
true and accurate in all material respects and will represent a
complete list in all material respects of such categories of assets
owned by the Obligors as at the date of the relevant Security Document
(except as agreed with the Agent prior to the Restructuring Date);
11.1.24 No Borrowed Money or Encumbrances: on the Restructuring Date, (i) none
of the Borrowers and the other members of the Group have any
liabilities in respect of Borrowed Money other than as permitted under
clause 12.2 (Negative Undertakings) and (ii) no Encumbrances (other
than Permitted Encumbrances) exist over the assets and undertaking of
the Borrowers or any other member of the Group;
11.1.25 Information Package:
(a) all factual statements contained in the Information Package
(excluding any financial projections contained therein) were, as
at their respective dates, true and accurate in all material
respects and did not contain any untrue statement of a material
fact or (to the best of the knowledge of the directors of the
Parent) omit to state a fact necessary in order to make not
misleading in any material respect the statements contained
therein; and
51
(b) all financial projections which have been prepared by the Parent
(or on its behalf) and contained in the Information Package have
been prepared in good faith and based upon assumptions which were
or are reasonable at the time prepared and at the time made
available to any Bank Finance Party;
11.1.26 Copies of documents to be true and accurate: the copies of the Zenith
Joint Venture Agreement and the other relevant incorporation and
constitutional documents or by-laws of the Obligors delivered to the
Arrangers in accordance with Schedule 5 of the Restructuring Deed are
true, complete and accurate in all material respects and, save as
otherwise referred to therein and so far as it is aware, no other
agreements, arrangements or understandings exist between all or any of
the parties to those agreements and instruments which would materially
affect the transactions or arrangements contemplated by the Bank
Finance Documents; and
11.1.27 Clean company: (other than as may result from the transfer to it of
the Zenith Joint Venture Agreement and the entry into of the Security
Documents to which it is a party and the documents ancillary thereto
and the transactions and matters contemplated thereby) prior to the
Restructuring Date the Zenith SPV has not undertaken any trading or
incurred any material liabilities of any nature whatsoever whether
actual or contingent.
11.2 Repetition
11.2.1 The representations and warranties in clause 11.1 shall be deemed to
be repeated by each Borrower on and as of the date of the
Restructuring Deed and the Restructuring Date as if made with
reference to the facts and circumstances existing on each such day.
11.2.2 The representations and warranties in clause 11.1 (other than clauses
11.1.5 11.1.7, 11.1.8, 11.1.11, 11.1.12, 11.1.13, 11.1.14, 11.1.18,
11.1.19, 11.1.21, 11.1.23, 11.1.24, 11.1.25, 11.1.26, and 11.1.27 (the
"excluded representations and warranties") shall be deemed to be
repeated by each Borrower on and as of each Drawdown Date and each
Repayment Date as if made with reference to the facts and
circumstances existing on each such day.
12 Undertakings
12.1 Positive undertakings
Each Borrower undertakes with each of the Bank Finance Parties that,
from the date of this Agreement and so long as any moneys are owing
under this Agreement or remain available for drawing by the Borrowers,
it will (save where permitted to do otherwise by the prior written
consent of the Agent, acting upon the instructions of the Majority
Banks):
12.1.1 Notice of Default:
(a) (in the case of the Parent) promptly, and in any event within
five Banking Days after a Responsible Officer of any Obligor
becomes aware of the same, inform the Agent of any occurrence
which would or is reasonably likely in its opinion to have a
Material Adverse Effect; and
(b) (in the case of each Borrower) promptly, and in any event within
five Banking Days after a Responsible Officer of any Obligor
becomes aware of the same, inform the Agent of any Default,
and in the case of each of paragraphs (a) and (b) at the time of
giving such information, provide a written notice specifying the
nature and period of the existence of the relevant occurrence
having a Material Adverse Effect or Default (as the case may be)
and what action the Group is taking or proposes to take with
respect thereto;
52
12.1.2 Consents and licences: without prejudice to clauses 3 and 11.1, obtain
or cause to be obtained, maintain in full force and effect and comply
in all material respects with the conditions and restrictions (if any)
imposed in, or in connection with, every material consent,
authorisation, licence or approval of governmental or public bodies or
authorities or courts and do, or cause to be done, all other acts and
things which may from time to time be necessary under applicable law
for the continued due performance of all its obligations under this
Agreement, and its obligations and the obligations of its Subsidiaries
under any other Bank Finance Documents to which it or any of its
Subsidiaries is a party, and in the case of any such Security
Documents, prior to the execution of such Security Documents;
12.1.3 Use of proceeds: use the proceeds of drawings under this Agreement
exclusively for the respective purposes specified in clause 1.1;
12.1.4 Pari passu: except as preferences and priorities are created in favour
of, and allocated among the Banks and the Noteholders pursuant to the
Intercreditor Agreement, the Common Security Trust Deed and the
Security Documents, ensure that (a) its obligations under this
Agreement shall, without prejudice to the provisions of clause 12.2,
at all times rank at least pari passu with all its other present and
future unsecured and unsubordinated Indebtedness with the exception of
any obligations which are mandatorily preferred by law and not by
contract, and (b) the Security Documents will have at all time first
ranking priority, and will not be subject at any time to any prior
ranking or pari passu ranking Encumbrances other than Permitted
Encumbrances (except as specifically stated in the Security
Memorandum);
12.1.5 Preparation of financial statements: it will (in the case of the
Parent):
(a) Audited Financial Statements: prepare consolidated financial
statements in respect of the Group in accordance with the
Appropriate Accounting Principles consistently applied in respect
of each Financial Year and cause each of the same to be reported
on by the Auditors;
(b) Quarterly Management Accounts: prepare consolidated quarterly
management accounts for the Group in accordance with the
Appropriate Accounting Principles (consistently applied) in
respect of each Quarter in the agreed form and including:
(i) a cashflow statement and a consolidated profit and loss
account in respect of the relevant Quarter, the Financial
Year to that date, and whatever periods or rolling 12 month
periods are relevant to the calculations of the Financial
Definitions for the Financial Covenants;
(ii) a comparison of all relevant results with the relevant
Annual Budget;
(iii) a comparison of actual performance for that Quarter with
the performance during the equivalent Quarter during the
immediately preceding Financial Year;
(iv) a consolidated balance sheet as at the end of that Quarter;
and
(v) a management discussion and analysis consistent with the
Index of Management Discussion and Analysis;
(vi) (for the purposes relevant for clause 8.64 (Disposal of
assets)) a statement of the aggregate Net Proceeds of
relevant disposals made during such period other than
disposals to which clause 8.6.4(a) does not apply;
(vii) (for the purposes relevant for clause 13.1.3 (Maximum
Capital Expenditure) a statement of the Capital Expenditure
during such period;
(viii) an analysis of the profit and loss account by profit
centres; and
(ix) a statement of the consideration paid by the Group (and
broken down by Group members) in respect of Permitted
Acquisitions during such period;
53
(c) Monthly Management Accounts: prepare consolidated monthly
management accounts in respect of the Group in accordance with
the Appropriate Accounting Principles (consistently applied) in
respect of each month in the agreed form and including:
(i) a consolidated cashflow statement (including a 4 week
rolling forecast of central liquidity in the agreed form)
(ii) a consolidated profit and loss account for the relevant
month and the Financial Year to that date;
(iii) a comparison of all relevant results with the relevant
Annual Budget;
(iv) a comparison of actual performance for that month with the
performance during the equivalent month during the
immediately preceding Financial Year;
(v) a management discussion and analysis consistent with the
Index of Management Discussion and Analysis;
(vi) (for the purposes relevant for clause 8.6.4 (Disposal of
assets)) a statement of the aggregate Net Proceeds of
relevant disposals made during such period other than
disposals to which clause 8.6.4(a) does not apply;
(vii) (for the purposes relevant for clause 13.1.3 (Maximum
Capital Expenditure) a statement of the Capital Expenditure
during such period; and
(viii) a statement of the investments and other transactions
entered into pursuant to clause 12.2.6(b).
12.1.6 Delivery of financial statements: (in the case of the Parent only),
deliver to the Agent, for distribution to the Banks, sufficient copies
for all the Banks of each of the following documents:
(a) Audited Financial Statements: at the time of issue of the audited
financial statements (whether preliminary or otherwise) to the
shareholders of the Parent but in any event not later than 90
days after the end of the Financial Year to which they relate,
the audited financial statements referred to in clause 12.1.5(a)
for each Financial Year together, in each case, with the report
of the Auditors thereon, the notes thereto, the directors' report
thereon, the preliminary audited financial statements, and the
report referred to in clause 12.1.6(e);
(b) Quarterly Management Accounts: within 45 days after the end of
the Quarter to which they relate, the quarterly management
accounts prepared in accordance with the requirements of clause
12.1.5(b), together with the certificate referred to in clause
12.1.6(d);
(c) Monthly Management Accounts: within 30 days after the end of each
month to which they relate, the monthly management accounts
prepared in accordance with the requirements of clause 12.1.5(c);
(d) Directors' Comoliance Certificates: at the time of the delivery
of the Quarterly Management Accounts, for each Quarter and in
each case speaking as at the end of such Quarter a Compliance
Certificate of the Parent signed by its finance director, or if
the finance director is unavailable for any reason, any other
director of the Parent;
(e) Annual Auditors' report: at the time of delivery of the Audited
Financial Statements a report from the Auditors (in a format
acceptable to the Agent and which can be relied upon by the Agent
(for itself and the other Bank Finance Parties)) stating:
54
(i) the amounts of the respective Financial Definitions in
respect of or, as the case may be, as at the end of the
relevant period specified in the Financial Covenants as
extracted from such Audited Financial Statements and
indicating the manner in which such amounts have been
calculated;
(ii) the application of the respective amounts of such Financial
Definitions to the Financial Covenants; and
(iii) a list of the Group companies that are Material
Subsidiaries as at the end of the relevant Financial Year to
which the report relates,
and each such report shall (in the absence of manifest error) be
conclusive as to matters contained in it;
(f) Annual Budget (i) as soon as it becomes available, and in any
event not later than 45 days after the commencement of the
Financial Year the subject thereof the Annual Budget for each
Financial Year, (ii) as soon as it becomes available, and in any
event not later than 45 days after the commencement of each
relevant Quarter, an updated version of the Annual Budget for the
relevant Financial Year, and (iii) immediately upon being
approved by the Parent's board of directors, any amendments or
revisions to an Annual Budget (other than the quarterly updates
provided for in (ii));
(g) Reports and notices to creditors and shareholders: at the time of
issue thereof every report, circular, notice or like document
issued by an Obligor or any Material Subsidiary to its creditors
(or any class of creditors) generally or to the Noteholders and
every notice convening a meeting of the shareholders or any class
of the shareholders of the Parent;
(h) Information to creditors: promptly upon their becoming available,
copies of all information (including, without limitation, all
financial information reports, projections, forecasts, budgets,
business information, financial statements, reports, circulars,
notices or similar documents (but excluding any routine
administrative notices and certificates)) that is sent by the
Parent or any Subsidiary to any Bank or its public securities
holders;
12.1.7 Further information: with reasonable promptness, such further
financial and other information concerning the Group (or any member of
it) and its affairs as the Agent or any Bank (acting through the
Agent) may from time to time reasonably require;
12.1.8 Independent accountant's report: (in the case of the Parent only)
notify the Agent immediately upon it becoming aware that a breach of
clause 13 (Financial Covenants) or an Event of Default under any of
clauses 14.1.1 (Non payment) or 14.1.5 to 14.1.15 inclusive
(Cross-default and insolvency events) is reasonably likely to occur
either immediately or within the following 12 months. Upon receiving
such notification from the Parent, the Agent (acting on the
instruction of the Majority Banks) shall have the right to require the
preparation of an independent accountants' report on the financial and
business condition and prospects of the Group and/or such other
reports as the Majority Banks shall require (the cost in each case to
be borne by the Parent) and the Parent will (and will procure that
each other member of the Group will) provide the persons preparing
each such report with all assistance and information requested by
them;
12.1.9 Notices from governmental authority: promptly, and in any event within
30 days of receipt thereof, deliver to the Agent (in sufficient copies
for all the Banks) any notice to the Parent or any Subsidiary from any
governmental authority relating to any order, ruling, statute or other
law or regulation that could reasonably be expected to have a Material
Adverse Effect;
12.1.10 Other reports: promptly upon their becoming available, deliver to the
Agent (in sufficient copies for all the Banks) (i) each material
document filed by the Parent with the Financial Services Authority or
London Stock Exchange plc and thereafter generally available to the
public, (ii) each regular or periodic report, each registration
statement (without exhibits except as expressly requested by the
Agent), and each prospectus and all amendments
55
thereto filed by the Parent or any Subsidiary with the Securities and
Exchange Commission or any similar governmental authority or stock
exchange, and (iii) each press release or other statement made
available generally by the Parent or any Subsidiary to the public
concerning developments that are material;
12.1.11 Taxes: file all Tax returns and will pay all Taxes within applicable
grace periods other than those which are being disputed by it in good
faith and for which appropriate reserves have been made;
12.1.12 Tax: maintain, and, in the case of the Parent, procure that each
Obligor maintains, its tax residence in the jurisdiction of
incorporation;
12.1.13 Insurance: insure and, in the case of the Parent, procure that each of
its Material Subsidiaries will insure and keep insured all its
properties and assets with underwriters or insurance companies of
repute to such extent and against such risks as prudent companies
engaged in businesses similar to those of the relevant member of the
Group normally insure;
12.1.14 Pension schemes: contribute (or, in the case of the Parent, procure
that the members of the Group contribute) to the pension schemes for
the time being applying to their employees in the US, except to the
extent it could not result in material liability, and elsewhere at the
rate required of them under all applicable laws or, if greater, in
accordance with the terms governing such pension schemes provided that
nothing in the Agreement shall prevent a member of the Group
terminating its liability to contribute to a pension scheme in
accordance with its terms, amending a pension scheme and/or
establishing new pension arrangements or amending a pension scheme;
12.1.15 Compliance with laws and regulations: comply and, in the case of the
Parent, procure that the Material Subsidiaries and other Obligors
comply, with the terms and conditions of all laws, regulations,
agreements, licences and concessions material to the carrying on of
its business;
12.1.16 Interest rate hedging and foreign exchange hedging: in the case of the
Parent, ensure that with effect from the Restructuring Date the
Hedging Strategy is implemented by the entry into of appropriate
Derivatives Contracts from time to time and will ensure that no member
of the Group enters into any other Derivatives Contract which is
speculative or does not relate to the hedging of exposures or
liabilities of members of the Group incurred in the ordinary course of
trading;
12.1.17 ERISA:
(a) promptly and in any event within thirty days after the filing
thereof with the Internal Revenue Service of the United States,
to deliver to the Agent copies of each Schedule B (Actuarial
Information) to the Annual Report (IRS Form 5500 Series) if
required with respect to each Plan covered by Title IV of ERISA
other than a Multiemployer Plan;
(b) promptly and in any event within ten Banking Days after any
Obligor knows or has reason to know that any ERISA Event (i) has
occurred or (ii) will occur in the case of any ERISA Event which
requires advance notice under Section 4043(b)(3) of ERISA, to
deliver to the Agent a statement of the treasurer or chief
financial officer of the Parent or such other member of the Group
or ERISA Affiliate describing such ERISA Event and the action, if
any, which such member of the Group or such ERISA Affiliate
proposes to take with respect thereto;
(c) promptly and in any event within five Banking Days after receipt
thereof by the Obligor or ten Banking Days after receipt thereof
by any member of the Group or any ERISA Affiliate other than the
Obligor, to deliver to the Agent copies of each notice from PBGC
stating its intention to terminate any Plan or to have a trustee
appointed to administer any Plan; and
56
(d) ensure that, during the term of this Agreement, neither any
Subsidiary incorporated in the United States nor any ERISA
Affiliate shall agree to contribute, or assume any obligation to
contribute, to any Multiemployer Plan without notifying the
Majority Banks;
12.1.18 Margin Stock: ensure that no amounts raised under this Agreement will
be used, directly or indirectly, to purchase or carry margin stock;
12.1.19 Guarantees and security from Material Subsidiaries: (in the case of
the Parent only), it will procure, to the extent consistent with the
principles agreed in the Security Memorandum:
(a) that documentation, in form and substance satisfactory to the
Agent (acting reasonably), supplemental to and/or incorporating
provisions substantially the same as the New Guarantees and/or
such other relevant Security Documents, and such ancillary
documentation as the Agent may reasonably require, shall be
executed and delivered to the Agent by any Material Subsidiary
incorporated in (or formed under the laws of) England and Wales,
the United States of America, Germany or the Netherlands which
has not already granted a New Guarantee and Encumbrances in
accordance with the Security Memorandum (in each case together
with legal opinions relating thereto in form and substance
satisfactory to the Agent (acting reasonably)) as soon as is
reasonably practicable and in any event within 45 days of such
requirement arising under this clause 12.1.19(a); to the intent
that each such Material Subsidiary shall guarantee the
obligations of the Obligors under the Finance Documents and
create Encumbrances securing such obligations in accordance with
the Security Memorandum; and
(b) that the immediate Holding Company of every member of the Group
required to provide security and/or a guarantee pursuant to this
clause 12.1.19 (each a "relevant Subsidiary") executes and
delivers to the Agent, as soon as is reasonably practicable and
in any event on or before the deadline under this clause 12.1 .19
for the execution and delivery of such security and/or guarantee
by its relevant Subsidiary, documentation, in form and substance
reasonably satisfactory to the Agent which creates an Encumbrance
over the shares in such relevant Subsidiary (if such shares are
not already the subject of an Encumbrance created by a Security
Document which is governed by the laws of the jurisdiction of
incorporation or formation of such relevant Subsidiary executed
by such Holding Company) and, in the case of relevant Holding
Companies incorporated or formed in England and Wales only, a
fixed and floating charge over all the assets and undertaking of
any such Holding Company governed by the laws of England and
Wales (if such assets and undertaking are not already the subject
of such fixed and floating charge created by a Security Document)
and a guarantee of the obligations of the Obligors under the
Finance Documents (if such guarantee has not already been
executed) together with such ancillary documentation as the Agent
may reasonably require and legal opinions, in each case in form
and substance satisfactory to the Agent (acting reasonably);
12.1.20 Preference shares: redeem preference shares no earlier than their
stated maturity as at the date of this Agreement (which in the case of
Lighthouse and its Subsidiaries are set out in schedule 13) or, in the
case of preference shares issued in accordance with clause 12.2.8, no
earlier than their stated maturity as at the date of their issue;
12.1.21 Environmental: (and will procure that each other member of the Group
will) comply with all Environmental Laws and Environmental Licences
applicable to its business to the extent that a failure to so comply
would be reasonably expected to have a Material Adverse Effect;
12.1.22 Authorised Officers: ensure that any replacement or new Authorised
Officer has provided the Agent with evidence satisfactory to it of
such new officer's authority and a specimen of his signature prior to
signing any Drawdown Notices, L/C Application or other notices,
requests or confirmations referred to in this Agreement or relating to
the Facilities;
57
12.1.23 Cash management arrangements:
(a) (in the case of the Parent only) use its best endeavours to
procure that cash held by members of the Non-Guarantor Group and
which is not required to meet working capital liabilities will be
repatriated directly or indirectly to the bank account of a
member of the Guarantor Group located in England and Wales or the
United States, to the extent that such repatriation can be
carried out in a legal and tax-efficient manner and without
incurring costs which are disproportionate to the benefit to the
Bank Finance Parties; and
(b) and will procure that each other member of the Group will,
conduct their Cash Pooling Arrangements in the UK the US and the
Euro-Zone with a Bank or Banks, excluding the Cash Pooling
Arrangements listed in Schedule 14 for so long as they continue
pursuant to the same terms as and from the Restructuring Date and
except as otherwise agreed in writing with the Agent;
12.1.24 Zenith SPV: (in the case of the Parent only) procure that:
(a) the Zenith SPV will not carry out any trading, business or other
activity or own any material assets other than holding the shares
in Zenith and Facilities Group, acting in relation to the joint
ventures constituted by the Zenith Joint Venture Agreement and
the Facilities Group Joint Venture Agreement, and complying with
the call options or exercising the put options under the Zenith
Joint Venture Agreement and will not incur any material
liabilities of any nature whatsoever (Whether actual or
contingent) other than (i) liabilities for reasonable
professional fees (ii) liabilities under the Zenith Joint Venture
Agreement and the Facilities Group Joint Venture Agreement (iii)
liabilities under the Banks Finance Documents to which it is
party (iv) liabilities under any loans entered into with the
Parent in connection with the transfer of the shares in Zenith
and Facilities Group from the Parent to the Zenith SPV and (v)
liabilities which will arise if it were wound up;
(b) any and all of the Group's right, interest and title in respect
of the shares in Zenith will be held at all times by the Zenith
SPV;
(c) following the transfer of the shares in Facilities Group to the
Zenith SPV pursuant to clause 8.3 of the Restructuring Deed, any
and all of the Group's right, interest and title in respect of
the shares in Facilities Group will be held at all times by the
Zenith SPV; and
(d) the Zenith SPV will not transfer or otherwise dispense of any
interest in any of the shares it holds from time to time in
Zenith other than (i) pursuant to the exercise of a call option
or a put option under the Zenith Joint Venture Agreement or (ii)
pursuant to a transfer or other disposal to a person which is not
a member of the Group and where the Net Proceeds of such transfer
or disposal are at least equal to the Net Proceeds which would be
received by the Group following the exercise of the put option
under the Zenith Joint Venture Agreement at such a time, in each
case where the Net Proceeds are applied in accordance with clause
8.6.3, and will not create any Encumbrance over any interest in
any of the shares it holds from time to time in Zenith except
under a Security Document; and
12.1.25 Control Event and Change of Control: (in the case of the Parent only)
promptly provide the Agent with written notice of any Control Event
and any Change of Control.
12.2 Negative undertakings
Each Borrower undertakes with each of the Bank Finance Parties that,
from the date of this Agreement and so long as any moneys are owing
under this Agreement or remain available for drawing by the Borrowers,
without the prior written consent of the Agent acting on the
instructions of the Majority Banks:
58
12.2.1 Negative pledge: save for Permitted Encumbrances it will not permit
any Encumbrance by any member of the Group to subsist, arise or be
created or extended over all or any part of its present or future
undertakings, assets, rights or revenues to secure or prefer any
present or future Indebtedness of any member of the Group or any other
person;
12.2.2 No other Borrowed Money or finance transactions: it will not, and will
procure that no other member of the Group will, incur or permit to
exist on its behalf any obligations in respect of Borrowed Money,
including Finance Leases, Whether on or off balance sheet, to any
person, or any sale and leaseback except:
(a) Borrowed Money arising from normal trade credit;
(b) the Borrowed Money of any persons acquired by any member of the
Group pursuant to the D Acquisition provided that such Borrowed
Money at no time exceeds Korean Won 16,900,000,000 (or its
equivalent) in aggregate;
(c) any Borrowed Money of any person (other than pursuant to the D
Acquisition or the Lighthouse Acquisition) acquired by any member
of the Group after the date of this Agreement, where such
Borrowed Money was existing at the time of such acquisition and
was not incurred in contemplation of, or in connection with, that
acquisition and where no member of the Group other than the
person so acquired has any obligation (actual or contingent) in
respect of such Borrowed Money (and where such Borrowed Money is
permitted under clause 12.2.6(c)) and is repaid or otherwise
discharged within 30 days of such acquisition;
(d) Borrowed Money not exceeding Australian dollars 10,000,000 in
aggregate in respect of working capital facilities made available
in Australia to members of the Group;
(e) without duplication, Borrowed Money in respect of debit balances
at any bank or financial institution under the cash management
arrangements of the Group (net of the credit balances of the
Group at such bank or financial institution to the extent that
such credit balances are subject to contractual set-off against
such debit balances (both before and after insolvency under such
cash management arrangements) where the aggregate of all such net
debit balances of the Group does not exceed (pound)5,000,000 (or
its equivalent);
(f) Borrowed Money in respect of (i) the Facilities and (ii) the
Notes (under the original terms of the Amended and Restated Note
Purchase Agreement) or as such terms may be amended in accordance
with the lntercreditor Agreement);
(g) Indebtedness in respect of Finance Leases provided that the
aggregate amount of the principal element of the Indebtedness
under such Finance Leases does not exceed (pound)2,000,000 (or
its equivalent) at any time;
(h) performance bonds issued by a member of the Group in respect of
the obligations (other than any payment obligations) of another
member of the Group in the ordinary course of trading;
(i) Derivatives Contracts entered into in accordance with clause
12.1.16;
(j) Borrowed Money owed by one member of the Group to another member
of the Group (but subject to clause 12.2.5(b));
(k) Borrowed Money in respect of guarantees issued by banks on behalf
of Group members to media authorities in Korea and the United
Kingdom in each case in connection with bona fide arrangements
for maintenance of media accreditation in accordance with normal
industry practice; and
(l) Borrowed Money in addition to that permitted by clauses 12.2.2(a)
to (k) not exceeding (pound)16,000,000 (or its equivalent) in
aggregate at any given time;
59
12.2.3 No amalgamation and merger: it will not permit an Obligor to
amalgamate or merge with any other company or person in circumstances
where the Obligor ceases to exist or where any obligation of such
Obligor to the Bank Finance Parties (or any Encumbrance under any
Security Document) is or may be detrimentally affected;
12.2.4 Disposals: it will not and will procure that none of its Subsidiaries
will sell, transfer, lease, surrender, lend or otherwise dispose of
the whole or any part of its present or future undertakings, assets or
revenues whether by one or a series of transactions related or not (or
enter into any binding commitment to do any of the same (whether
conditional or otherwise)) (each a "disposal") except for:
(a) the disposal of stock-in-trade in the ordinary course of day to
day trading;
(b) any disposal for cash on arm's length terms where the aggregate
of the greater of the consideration and the market value of all
such disposals does not exceed (pound)10,000,000 (or its
equivalent) provided that the Net Proceeds of such disposal are
applied as (and to the extent) required by clause 8.6.4; and
(c) any disposal by:
(i) a member of the Group to a member of the Guarantor Group;
and
(ii) a member of the Non-Guarantor Group to another member of the
Non-Guarantor Group,
but so that in each case where any such asset is shares, other
ownership interests in any person or entity, real property or
real estate (or related insurance policies), receivables
(including intra-Group debts) or, in each case, rights or claims
in respect of any such asset and is subject or is expressed to be
subject to an Encumbrance pursuant to any Security Document such
disposal shall only be permitted either where the Agent is
satisfied that the guarantee given by the disposee of the
obligations of the Obligors under the Finance Documents is not
limited to a greater extent than that given by the disposer and
that either (A) such Encumbrance is not prejudiced as a result of
such disposal or (B) the asset concerned becomes subject to a
fully enforceable, legally binding Encumbrance in favour of the
Common Security Trustee and the other Finance Parties
substantially equivalent to or better than such other Encumbrance
or with the consent of the Agent (acting on the instructions of
the Majority Banks);
(d) dealings with trade debtors with respect to book debts in the
ordinary course of trading;
(e) disposals of cash on arm's length terms not otherwise prohibited
by the Bank Finance Documents;
(f) disposals which constitute investments permitted by clause
12.2.6(b); and
(g) the disposals permitted by clause 12.1.24(d) provided that the
proceeds of such disposals are applied in accordance with clause
8.6.3,
and so that where the asset or assets the subject of a disposal
permitted by this clause (whether pursuant to clause 12.2.4(a) to
(g) above or with the prior written consent of the Agent acting
on the instructions of the Majority Banks (but excluding the
assets referred to in the last paragraph of clause 12.2.4(c) in
the case of any disposal under such clause)) is or are subject to
an Encumbrance created by the Security Documents, the consent of
the Agent (but without prejudice or responsibility to or in
respect of any other requisite consent) shall be granted (and
shall be deemed to be granted) for the release of the Encumbrance
created by the Security Documents over such assets provided that
no Default shall have occurred and be continuing neither remedied
nor waived (and the Agent is irrevocably authorised by the Bank
Finance Parties to grant such releases or, as appropriate, to
instruct and/or authorise the Common Security Trustee to grant
such releases without reference to the Bank Finance
60
Parties) and the Agent shall accordingly instruct the Common Security
Trustee to grant the relevant releases;
12.2.5 Loans and guarantees: it will not, and will procure that none of its
Subsidiaries will, make any loans, grant any credit (except for normal
trade credit in the ordinary course of day-to-day trading) or give any
guarantee save for:
(a) Permitted Guarantees to or for the benefit of any person; and
(b) loans or credit to a member of the Guarantor Group or loans or
credit from one member of the Non-Guarantor Group to another
member of the Non-Guarantor Group and loans or credit permitted
under clause 12.2.6(b);
12.2.6 Acquisitions: save for Permitted Acquisitions, it will not, and will
procure that none of its Subsidiaries will, acquire or make any
investment in any companies, joint ventures or partnerships or other
persons or acquire any businesses (or interests therein) (or commit to
do any of the same (whether conditionally or otherwise)) except for:
(a) investments in the then existing members of the Guarantor Group
(or a member of the Group or a newly formed entity which in each
case simultaneously becomes a member of the Guarantor Group) and
investments by a member of the Non-Guarantor Group in another
member of the Non-Guarantor Group;
(b) (i) investments in the shares of or other ownership interests in,
(ii) loans or credit granted to, (iii) disposals to (not
otherwise permitted under 12.2.4(a) to 12.2.4(e) inclusive or
clause 12.2.4(g)), and (iv) guarantees of the Indebtedness of,
any member of the Non-Guarantor Group (or such investments in
establishing a new entity which once formed is a member of the
Non-Guarantor Group) where the aggregate of such investments,
loans, credit, disposals and guarantees made in the relevant
Financial Year, together (without double counting) with the
Pooling Borrowed Money at any relevant time during such Financial
Year, at no time exceeds:
(i) (pound)20,000,000 (or its equivalent) during the Financial
Year ending 31 December 2002; or
(ii) (pound)15,000,000 (or its equivalent) during each subsequent
Financial Year, provided that, for the purposes of this
clause 12.2.6(b):
(A) "Pooling Borrowed Money" means, at any relevant time,
the aggregate of the Borrowed Money of any members of
the Non-Guarantor Group under any cash management
arrangements in respect of Which any member of the
Guarantor Group grants any guarantee, rights of set-off
or any other Encumbrance or grants an intra-Group loan;
(B) the value attributable to a disposal of an asset shall
be the market value of the disposed asset; and
(C) the relevant aggregate limit applicable during a
Financial Year shall be increased by the amount of (A)
any repayment, release or cancellation (whether in
whole or in part) of loans, credits and guarantees
previously taken into account for the purpose of
determining compliance with this clause 12.2.6(b)
during such Financial Year and (B) cash proceeds (to
the extent not already taken into account pursuant to
(A)), (net of related costs and Taxes) received by a
member of the Guarantor Group from a member of the
Non-Guarantor Group in such Financial Year under a
series of related transactions involving an investment
in such member of the Non-Guarantor Group made by such
member of the Guarantor Group within 13 months of such
receipt and previously taken into account for the
purpose of determining compliance with this clause
12.2.6(b) (to the extent that such
61
net cash proceeds do not exceed the amount of such
investment so taken into account).
(c) the acquisition of related businesses (including companies where
the liability of its shareholders is limited to their respective
share capital in such company but not other entities) provided
that:
(i) the consideration (without double counting within the
Group), including, without limitation, any deferred
consideration (whenever payable), and the obligations in
respect of Borrowed Money of any such company immediately
following its acquisition or repaid directly or indirectly
by any member of the Group or otherwise assumed by the Group
and taking the value of any non-cash consideration at the
higher of its stated value under the agreement(s) for the
acquisition in question and the market value of such
consideration on the date such agreement(s) were entered
into by the Group, in respect of all such acquisitions by
the Group (other than consideration constituted by ordinary
shares in the Parent issued or transferred to the relevant
vendor (or as it may direct)) shall not exceed $2,000,000
(or its equivalent) in aggregate in any Financial Year; and
(ii) the consideration constituted by ordinary shares in the
Parent issued or transferred to the relevant vendor (or as
it may direct)) in respect of any single acquisition shall
not exceed $20,000,000 (or its equivalent); and
(iii) the finance director of the Parent delivers a certificate
to the Agent at least 5 Banking Days before any member of
the Group enters into any commitment (conditional or
otherwise) to make such an acquisition in which the finance
director of the Parent confirms that in his opinion (but
without any personal liability on the part of such finance
director):
(A) the Parent is basing such certificate on the most
recent financial information relating to such business
which has been obtained by the Parent (acting prudently
and reasonably) and the Group's latest forecasts and
projections (which are fair and reasonable and have
taken full and proper account of the business to be so
acquired (including, without limitation, all contingent
liabilities relating to the business to be so
acquired));
(B) the business to be so acquired is not insolvent and is
EBITDA positive (as determined in accordance with the
definition of Consolidated EBITDA in clause 1.2, but
adjusted to exclude the effect of historic
non-recurring costs which will no longer be incurred by
that business following its acquisition);
(C) such acquisition is not, and the Parent it is not aware
(after due enquiry) of any matter or event which is,
reasonably likely to result in a breach of clause 13.1
(Financial Covenants) or an Event of Default under any
of clauses 14.1.1 (Non payment) or 14.1.5 (Cross
Default) to 14.1.15 (Analogous proceedings) inclusive
either immediately or within the period ending 12
months after the date of such acquisition;
(D) the Group is reasonably likely to have sufficient
working capital during the period ending 12 months
after the date of such acquisition;
(E) after taking into account any Capital Expenditure
incurred by the Group in making such acquisition, the
Group will still be able, in compliance with the
Financial Covenant in clause 13.1.3, to undertake
sufficient Capital Expenditure so as to properly
maintain its businesses during the period ending 12
months after the date of such acquisition;
62
(F) in the case of acquisitions by members of the
Non-Guarantor Group, such acquisition is not funded
directly or indirectly by any Guarantor, other than to
the extent permitted under clause 12.2.6(b); and
(G) no Default has occurred which is continuing and no
Default will arise as a result of such acquisition; and
(iv) no Default has occurred which is continuing and no Default
will arise as a result of such acquisition, and
for the avoidance of doubt, any such acquired businesses shall be
immediately subject to the undertakings in clauses 12.1.19 and
12.2.2(c);
12.2.7 Change of business: it will not, and will procure that none of its
Subsidiaries will make any material change to the general nature of
its business which would constitute a material change in the nature of
the business of the Group taken as a whole from that carried on at the
date of this Agreement;
12.2.8 Preference Shares: it will not, and will procure that none of its
Subsidiaries will, issue any shares or stock which are redeemable at
the option of the holder thereof or which mature or are mandatorily
redeemable or which are convertible or exchangeable for Borrowed Money
of the Group save as set out in Schedule 13;
12.2.9 The Lighthouse Acquisition: [deleted];
12.2.10 Transactions similar to security: it will not, and will procure that
no other member of the Group will:
(a) sell or otherwise dispose of any of its assets on terms whereby
such asset is or may be leased to, or re-acquired or acquired by
the Parent or any other member of the Group; or
(b) sell, factor, discount, or dispose of any of its receivables
other than the sale, factoring, discounting or disposal of
receivables on a non-recourse basis where the aggregate amount of
receivables so sold, factored, discounted or disposed does not
exceed (pound)500,000 (or its equivalent) in aggregate;
12.2.11 Rights issue/equity raising: (in the case of the Parent only) it will
not issue any shares or otherwise acquire any additional capital other
than:
(a) the issue of ordinary shares to the extent permitted (I) as
consideration for any Permitted Acquisitions or (ii) in
consideration for acquisitions permitted under clause 12.2.6; and
(b) the issue of ordinary shares for cash payable in full on the date
of issue and which ordinary shares do not carry any right to a
return or to redemption nor any right to be converted into shares
carrying such right before all amounts (whether actual or
contingent) owing under this Agreement have been paid in full and
the Bank Finance Parties have no further obligations thereunder,
or the granting of an option to call on the Parent to issue such
shares;
and it will at all times procure that no other member of the Group
will issue any shares or otherwise acquire any additional capital (or
grant any rights to call for the issue or allotment of any of the
same) other than the issue of shares by a member of the Group to
another member of the Group permitted under clause 12.2.6(a) or (b)
provided that (A) where the existing shares in such member of the
Group are subject to an Encumbrance under any of the Security
Documents, such additional shares are also subject to such an
Encumbrance and (B) where such existing shares are subject to
Encumbrances which are structured to avoid an adverse US Tax
consequence to the Group, such additional shares shall only be issued
to the existing holding company of the issuing member of the Group;
63
12.2.12 Dividends and other distributions: the Parent will not
(a) and will procure that no other member of the Group will redeem or
purchase or otherwise reduce any of the Parent's share capital or
any uncalled capital or unpaid liability in respect thereof or
reduce the amount (if any) for the time being standing to the
credit of the Parent's share premium account or capital
redemption or other undistributable reserve in any manner (other
than a partial capital reorganisation in order to create
distributable reserves where no amount is paid or becomes payable
(including, without limitation, by way of set-off, combination of
accounts or otherwise) to any shareholder in the Parent as part
of such reorganisation); or
(b) declare, pay (including, without limitation, by way of set-off,
combination of accounts or otherwise) or permit to accrue any
dividend or make any other distribution or payment (whether in
cash or in specie), including any interest and/or unpaid
dividends, in respect of its equity or any other share capital
for the time being in issue except that it may declare and pay a
final dividend (but not an interim dividend) in respect of any
Financial Year after 31 December 2001, provided that:
(i) the Financial Covenants have been tested and passed as at
the 30 June Financial Covenants test date in the following
Financial Year; and
(ii) no breach of any of the Financial Covenants has occurred and
is continuing and no other Default or Event of Default has
occurred which is continuing; and
(iii) the ratio of Consolidated Gross Borrowings to Consolidated
EBITDA was not greater than 3.50:1 on each of two most
recent consecutive Financial Covenants test dates; and
(iv) the dividend does not exceed 25% of Consolidated Excess
Cashflow if the ratio of Consolidated Gross Borrowings to
Consolidated EBITDA was not less than 3.25:1 on each of the
two most recent consecutive Financial Covenant test dates;
and
(v) the dividend does not exceed 50% of Consolidated Excess
Cashflow; and
(vi) not later than 5 and no more than 15 Banking Days prior to
the proposed date for the payment of that dividend the
finance director (or, if unavailable for any reason, any
other director in each case in such directors' opinion but
without personal liability) of the Parent delivers to the
Agent a certificate in which the Parent certifies (without
qualification) that:
(A) it proposes to pay a dividend and states the amount of
it;
(B) no breach of any of the Financial Covenants has
occurred and is continuing and no other Default has
occurred which is continuing;
(C) in the opinion of the board of directors of the Parent
(acting in good faith and after having regard (inter
alia) to the current and projected trading and cash
flow position of the Group (such projections being
based on reasonable assumptions), and assuming the
making of such dividend):
1) no breach of clause 13.1 (Financial Covenants) or
any Event of Default is reasonably likely to occur
either immediately or within the period ending 12
months after the date of the dividend; and
2) the Group is reasonably likely to have sufficient
working capital during such 12 month period,
64
and such certificate shall be accompanied by (a) a forecast
for the period of 6 full months following the proposed
payment date showing the projected respective amounts of
Consolidated EBITDA, Consolidated Gross Borrowings,
Consolidated Net Interest Expenditure, Capital Expenditure
and Net Worth and their application to the Financial
Covenants in respect of each Financial Covenant test date
within such period, such forecast to be based on the
knowledge of the Parent and the circumstances then existing
at such time together with reasonable assumptions, and (b) a
calculation by the Parent of Consolidated Excess Cash Flow
for the relevant Financial Year (showing the calculations on
which it is based) together with a statement from the
Auditors as to the amount of the Consolidated Excess Cash
Flow confirming that in all material respects the
calculation has been made in accordance with the audited
consolidated financial statements of the Group for the
relevant Financial Year and the definition of Consolidated
Excess Cash Flow;
12.2.13 Zenith: in the case of the Parent only, it will not, and will procure
that no other member of the Group will, terminate, amend or vary (or
acquiesce in any termination, amendment or variation of) the terms of
the Zenith Joint Venture Agreement in a way which might reasonably be
expected to adversely affect the Group's rights or interests under or
in respect of the put and call options contained therein relating to
the Group's shares in Zenith or which might reasonably be expected to
adversely affect (or delay) the amount of receipt of any amount
referred to in clause 8.6.3;
12.2.14 Accounting Policy: in the case of the Parent only, it will not adopt
any accounting policy or change the consistency of application of its
accounting principles, standards, practises and bases from the
Appropriate Accounting Principles (i) unless the revised policy,
principle, standard, practice or base adopted from time to time is in
accordance with generally accepted accounting practice in the United
Kingdom and (ii) provided that prior to any revised policy, principle,
standard, practice or base being adopted the Parent will notify the
Agent thereof and, if required by the Agent, will negotiate in good
faith with the Agent in order that the Financial Definitions and
Financial Covenants may be amended as may be necessary to grant to the
Bank Finance Parties protection comparable to that granted on the
Restructuring Date provided that if such negotiations are not
concluded to the satisfaction of the Agent within 30 days from the
commencement of such negotiations (or, if earlier, any date on which
any financial statements are due to be delivered under clause 12.1.6)
the Parent agrees that it will provide either financial statements on
the same basis as before or provide financial statements together with
a reconciliation of those financial statements to the Appropriate
Accounting Principles (such reconciliation, in the case of any audited
financial statements, to be prepared by the Auditors and addressed to
the Bank Finance Parties);
12.2.15 Accounting Reference Date: (in the case of the Parent only) it will
not, without the consent of the Agent, change its accounting reference
date from 31 December;
12.2.16 Cash management arrangements: (in the case of the Parent only) it will
not allow any member of the Non-Guarantor Group incorporated or formed
in the United States or in England and Wales to be a party to any Cash
Pooling Arrangements with any other member or members of the Group,
other than where the value of any loans, credits, rights of set-off,
guarantees or other Encumbrances provided to such members of the
Non-Guarantor Group does not exceed (pound)500,000 and such loans,
credits, rights of set-off, guarantees or other Encumbrances are
subject to clause 12.2.6(b); and
12.2.17 Other credit facilities and securities:
(a) it will not, and will procure that no other Obligor will, enter
into any modification or amendment to any existing credit
facility or other financing document (including, without
limitation, the Amended and Restated Note Purchase Agreement or
the Notes), or enter into any new credit facility or financing
document, that contains financial covenants, financial
definitions or default provisions more favourable to the lender
or financier thereunder than under any Bank Finance Document
unless the Bank Finance Parties are given the option of receiving
the benefit of such more favourable provisions at the same time
and on the same terms; and
65
(b) it will not, and will procure that no other member of the Group
will, provide any guarantee or any Encumbrance to the Noteholders
to secure the obligations of any member of the Group under the
Note Finance Documents (whether or not also in respect of any
other Indebtedness) unless the same or a similar guarantee or
Encumbrance has also been entered into to secure the obligations
of any member of the Group under the Bank Finance Documents.
13 Financial Covenants
13.1 Covenants
The Parent undertakes with each of the Finance Parties that so long as
any moneys are owing under this Agreement or any of the Commitments
remain outstanding it will comply with the Financial Covenants in
clauses 13.1.1 to 13.1.4 inclusive.
13.1.1 Net Interest Cover: The Parent will procure that the ratio of
Consolidated EBITDA to Consolidated Net Interest Expenditure for each
period ending on the date set out in column A in the table below shall
not be less than the corresponding ratio set out in column B in the
table below:
31 March 2002 2.50:1
30 June 2002 1.75:1
30 September 2002 2.50:1
31 December 2002 2.50:1
31 March 2003 2.75:1
30 June 2003 3.00:1
30 September 2003 3.25:1
31 December 2003 3.75:1
31 March 2004 4.00:1
30 June 2004 4.50:1
30 September 2004 5.00:1
13.1.2 Leverage: The Parent will procure that the ratio of Consolidated Gross
Borrowings as at the end of, to Consolidated EBITDA in respect of,
each period ending on the date set out in column A of the table below
shall not be greater than the ratio set out in column B of the table
below:
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31 March 2002 5.75:1
30 June 2002 8.50:1
30 September 2002 4.75:1
31 December 2002 4.75:1
31 March 2003 4.25:1
30 June 2003 3.75:1
30 September 2003 3.75:1
31 December 2003 3.50:1
31 March 2004 3.00:1
30 June 2004 3.00:1
30 September 2004 2.75:1
13.1.3 Maximum Capital Exnenditure: The Parent will procure that, the total
Capital Expenditure of all members of the Group in any Financial Year
shall not exceed the Budgeted Capital Expenditure for such Financial
Year but so that in respect of any Financial Year where the relevant
actual Capital Expenditure (less any amount which was carried forward
from the previous Financial Year) is less than the Budgeted Capital
Expenditure for that Financial Year, an amount equal to such deficit
may be carried over to the following Financial Year only (and not
otherwise or further) and shall be deemed to be spent before Budgeted
Capital Expenditure in that year.
For the purposes of this clause 13.1.3 "Budgeted Capital Expenditure"
means Capital Expenditure incurred or to be incurred up to a maximum
of the amount set out in column B in the table below for the Financial
Year set out in column A in the table below.
31 December 2002 10.0
31 December 2003 17.5
31 December 2004 20.0
13.1.4 Consolidated Net Worth Covenant: The Parent will procure that the
Consolidated Net Worth of the Group will at all times be at
least(pound)400,000,000.
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13.2 Testing of the Financial Covenants
13.2.1 The Financial Definitions and Financial Covenants in clause 13.1 shall
be determined for and tested as at the end of each Quarter in each
case by reference to the latest Quarterly Management Accounts and the
related Compliance Certificate delivered to the Agent pursuant to
clauses 12.1.6(b) and 12.1.6(d), provided that if the Audited
Financial Statements and the related Auditor's Report for any
Financial Year delivered in accordance with clauses 12.1.6(a) and
12.1.6(e) show different determinations for the Financial Definitions
than those shown in the Quarterly Management Accounts for the last
Quarter in that Financial Year, such Audited Financial Statements
shall prevail in respect of such determinations.
13.2.2 For the purposes of testing the relevant Financial Covenants in clause
13.1, Consolidated Gross Borrowings will be calculated by reference to
the average daily outstandings over the two Quarters ending on the
relevant Financial Covenants test date and Consolidated EBITDA and
Consolidated Net Interest Expenditure shall be calculated on a rolling
twelve months basis.
14 Events of Default
14.1 Events of Default
Each of the events and circumstances set out below is an Event of
Default (whether or not caused by any reason outside the control of
any member of the Group):
14.1.1 Non-payment: any Borrower fails to pay any sum due from it under the
Bank Finance Documents in the currency, at the time and in the manner
stipulated in the relevant Bank Finance Document unless (a) such
failure results only from technical difficulties in the transfer of
funds and (b) such failure is remedied within two Banking Days of the
due date; or
14.1.2 Breach of certain obligations: any Borrower commits any breach of or
omits to observe any of the obligations or undertakings expressed to
be assumed by it under clauses 12.2 and 13.1; or
14.1.3 Breach of other obligations: any Obligor commits any breach of or
omits to observe any of the obligations or undertakings expressed to
be assumed by it under the Bank Finance Documents to which it is a
party (other than any such obligations or undertakings referred to in
clauses 14.1.1 and 14.1.2) and, in respect of any such breach or
omission which in the reasonable opinion of the Majority Banks is
capable of remedy, such action as the Agent may require shall not have
been taken within 5 Banking Days in the case of a breach or omission
to observe of any of the obligations or undertakings expressed to be
assumed under clauses 12.1.6(a), 12.1.6(b), 12.1.6(d) or 12.1.6(e) or
10 Banking Days in all other cases of the Agent notifying the Parent
of such default and of such required action; or
14.1.4 Misrepresentation: any representation or warranty made or deemed to be
made or repeated by or in respect of any Obligor in or pursuant to any
Bank Finance Document or in any notice, certificate or statement
referred to in and to be delivered by any Obligor under any Bank
Finance Document is or proves to have been incorrect or misleading in
any material respect at the date made or deemed to be repeated in
either case by reference to the facts and circumstances existing on
such day and the circumstances giving use to such misrepresentation,
if in the reasonable opinion of the Majority Banks are capable of
remedy, shall not have been remedied within 10 Banking Days of the
Agent as relevant notifying the Parent of such misrepresentation and
of such required remedy; or
14.1.5 Cross-default: any Borrowed Money of any member of the Group is not
paid when due (or within any applicable grace period expressly
contained in the agreement relating to such Borrowed Money in its
original terms) or becomes (whether by declaration or automatically in
accordance with the relevant agreement or instrument constituting the
same) due and payable prior to the date when it would otherwise have
become due or any creditor of any member of the Group becomes entitled
to declare any Borrowed Money of any member of
68
the Group so due and payable or to require cash collateralisation or
security for any such Borrowed Money (save pursuant to the terms of
this Agreement) or any facility or commitment available to any member
of the Group relating to Borrowed Money is withdrawn, suspended or
cancelled by reason of any default (however described) of the member
of the Group concerned unless the amount, or aggregate amount at any
one time, of all Borrowed Money in relation to which any of the
foregoing events shall have occurred and be continuing is equal to or
less than (pound)3,250,000 or its equivalent in the currencies in
which the sums are denominated and payable; or
14.1.6 Notes default: any Event of Default" (as defined in the Amended and
Restated Note Purchase Agreement) under the Amended and Restated Note
Purchase Agreement regardless of any waiver thereunder, or
14.1.7 Derivatives Contract default: any member of the Group fails to make
payment in relation to a Derivatives Contract of any sum equal to or
greater than(pound)3,250,000 in aggregate at any one time (or its
equivalent in the relevant currency of payment) on its due date
(taking into account any grace period permitted under the
documentation for that Derivatives Contract or, if none stated, within
5 Banking Days of the due date) or the counterparty to a Derivatives
Contract becomes entitled to terminate that Derivatives Contract early
by reason of default on the part of any member of the Group and the
Net Derivatives Liability in the aggregate payable under all affected
Derivatives Contracts at the relevant time is equal to or greater
than(pound)3,250,000 (or its equivalent in the relevant currency); or
14.1.8 Legal process: any judgment or order made against any Obligor or
Material Subsidiary is not stayed or complied with within 14 days or a
creditor attaches or takes possession of, or a distress, execution,
sequestration or other process is levied or enforced upon or sued out
against, any material part of the undertakings, assets, rights or
revenues of any Obligor or Material Subsidiary and is not discharged
within 14 days; or
14.1.9 Insolvency
(a) any Material Subsidiary or Obligor is (i) deemed unable to pay
its debts within the meaning of section 123(1 )(e) or (2) of the
Insolvency ▇▇▇ ▇▇▇▇ (but so that the words "it is proved to the
satisfaction of the court that" shall be deemed to be deleted),
(ii) becomes, or admits to being, unable generally to pay its
debts as they fall due or (iii) otherwise becomes insolvent or
stops or suspends making payments (whether of principal or
interest) with respect to all or any class of its debts or
announces an intention to do so; or
(b) any Material Subsidiary or Obligor incorporated in the United
States commences a voluntary case or other proceeding seeking
liquidation, reorganisation or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeks the appointment
of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or
consents to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or makes a general assignment
for the benefit of creditors, or fails generally to pay its debts
as they become due, or takes any corporate action to authorise
any of the foregoing; or
(c) an involuntary case or other proceeding is commenced against any
Material Subsidiary or Obligor incorporated in the United States
seeking liquidation, reorganisation or other relief with respect
to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and such
involuntary case or other proceeding remains undismissed and
unstayed for a period of 60 days; or an order for relief is
entered against any such Material Subsidiary or Obligor under the
US federal bankruptcy laws as now or hereafter in effect; or
69
(d) a petition for insolvency proceedings in respect of the assets of
any Material Subsidiary or Obligor incorporated in Germany is
filed or threatened to be filed (such threat not to be frivolous)
or any event occurs which constitutes a cause for the initiation
of insolvency proceedings ("Eroffnungsgrund") as set forth in
Sec. 17 et seq. German Insolvency Code, in particular any such
Material Subsidiary or Obligor ceases to honour its obligations,
becomes insolvent or overindebted, admits its inability to meet
its obligations as they fall due or anything occurs which is
similar to the above under the laws of any jurisdiction; or
14.1.10 Reduction or loss of capital: a meeting is convened by any Material
Subsidiary or Obligor for the purpose of passing any resolution to
purchase, reduce or redeem any of its share capital or to comply with
section 142 of the Companies ▇▇▇ ▇▇▇▇ other than (i) in connection
with the redemption of preference shares at their scheduled maturity
as permitted under this Agreement or (ii) with the written consent of
the Agent (acting on the instructions of the Majority Banks); or
14.1.11 Winding up: any petition is presented or other step is taken for the
purpose of winding up any Material Subsidiary or Obligor (not being a
petition which such entity can demonstrate to the satisfaction of the
Agent, by providing an opinion of leading counsel to that effect, is
frivolous, vexatious or an abuse of the process of the court or
relates to a claim to which such entity has a good defence and which
is being vigorously contested by such company) or an order is made or
resolution passed for the winding up of any Material Subsidiary or
Obligor or a notice is issued convening a meeting for the purpose of
passing any such resolution, other than in relation to, or for the
purpose of, a solvent reorganisation on terms previously approved by
the Agent; or
14.1.12 Administration: any petition is presented or other step is taken for
the purpose of the appointment of an administrator of any Material
Subsidiary or Obligor or an administration order is made in relation
to any Material Subsidiary or Obligor; or
14.1.13 Appointment of receivers and managers: any administrative or other
receiver is appointed of any Material Subsidiary or Obligor or any
material part of its assets and/or undertakings or any other steps are
taken to enforce any Encumbrance over all or any part of the assets of
any Material Subsidiary or Obligor; or
14.1.14 Compositions: any steps are taken, or negotiations commenced, by any
Material Subsidiary or Obligor or by any of its creditors with a view
to proposing any kind of composition, compromise or arrangement
involving such entity and its creditors generally, other than for the
purposes of a solvent reorganisation on terms previously approved by
the Agent; or
14.1.15 Analogous proceedings: there occurs, in relation to any Material
Subsidiary or Obligor, in any country or territory in which it carries
on business or to the jurisdiction of whose courts any part of its
assets is subject, any event which, in the reasonable opinion of the
Agent, appears in that country or territory to correspond with, or
have an effect equivalent or similar to, any of those mentioned in
clauses 14.1.8 (Legal process) to 14.1.14 (Compositions) (inclusive)
or any Material Subsidiary or Obligor otherwise becomes subject (other
than merely as a result of its existence), in any such country or
territory, to the operation of any law relating to insolvency,
bankruptcy or liquidation; or
14.1.16 Cessation of business: any Material Subsidiary or Obligor suspends or
ceases or threatens to suspend or cease to carry on all or a material
part of its business other than as otherwise permitted by this
Agreement or on terms previously agreed by the Agent; or
14.1.17 Seizure: all or a material part of the undertaking, assets, rights or
revenues of, or shares or other ownership interests in, any Material
Subsidiary or Obligor are seized, nationalised, expropriated or
compulsorily acquired by or under the authority of any government
other than for full consideration; or
14.1.18 Change of control: (deleted); or
70
14.1.19 Unlawfulness: it becomes unlawful at any time for any Obligor to
perform all or any of its obligations under any Bank Finance Document
to which it is a party; or
14.1.20 Repudiation: any Obliger repudiates any of the Bank Finance Documents
to which it is a party or does or causes or permits to be done any act
or thing evidencing an intention to repudiate any of the Bank Finance
Documents; or
14.1.21 Material Adverse Effect: any event or circumstance arises which, in
opinion of the Majority Banks (acting reasonably):
(a) is, or is reasonably likely to be, materially adverse to (i) the
ability of any Obligor to pay any sum due from it under any of
the Bank Finance Documents, (ii) the ability of any Obligor to
comply with any of its obligations or undertakings expressed to
be assumed by it under clauses 12.1.6(a), 12.1.6(b), 12.1 .6(d)
and 12.1.6(e) at the time and in the manner stipulated in those
clauses (or within the grace period applicable under clause
14.1.3), (iii) the ability of any Obligor to comply with any of
its obligations or undertakings expressed to be assumed by it
under clauses 12.2, or 13 of this Agreement, (iv) the ability of
any Obligor to perform any of its obligations under any of the
Security Documents or (v) the business, assets or financial
condition of the Group taken as a whole; or
(b) results in, or is reasonably likely to result in, any of the Bank
Finance Documents not being legal, valid and binding on, and,
enforceable substantially in accordance with their terms, against
any party thereto; or
14.1.22 Qualification of accounts: the Auditors qualify their report on the
preliminary or final audited consolidated financial statements of the
Group in any way except where the qualification has been agreed with
the Banks or where the remedy for the matter giving rise to the
qualification would have no material adverse effect on the results of
the Group for the period to which such accounts relate nor on the
financial position of the Group as at the end of such period; or
14.1.23 ERISA: with respect to any member of the Group incorporated or formed
in the United States, a Plan shall be terminated pursuant to Section
4041(c) of ERISA or PBGC shall institute proceedings under Section
4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan or a member of the Group incorporated in the
United States shall incur any liability as a result of a prohibited
transaction within the meaning of Section 4975 of the Code or Section
406 of ERISA, or contributions required to be made to a Plan pursuant
to Section 412 of the Code shall not be made, which, in the case of
any of the events described in this clause 14.1.23, shall result in
liability of any member of the Group incorporated in the United States
or any ERISA Affiliate which has or can reasonably be expected to have
a Material Adverse Effect; or
14.1.24 Challenge to security: any Security Document is not at the date of
execution thereof or ceases to be effective in any material respect or
any Obligor shall in any way challenge, or any proceedings shall in
any way be brought to challenge the validity or enforceability of any
of the Security Documents.
14.2 Acceleration
The Agent if so requested by the Majority Banks shall, without
prejudice to any other rights of the Bank Finance Parties, at any time
after the happening of an Event of Default (and for so long as the
Event of Default is continuing unremedied and unwaived) by notice to
the Parent declare that:
14.2.1 the obligation of each Funder to make its Commitment available shall
be terminated, whereupon the Total Commitments shall be reduced to
zero forthwith; and/or
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14.2.2 all outstanding Advances and Utilisations and all interest and
commitment commission accrued and all other sums payable under this
Agreement (including full cash cover in respect of all outstanding
Swingline Letters of Credit) have become immediately due and payable
or have become due and payable on demand, whereupon the same shall,
immediately or in accordance with the terms of such notice, become so
due and payable; and/or
14.2.3 the Security Documents (or any of them) have become enforceable
whereupon the same shall be enforceable, provided that immediately
upon the occurrence of any of the events specified in clauses 14.1.9
(Insolvency) to 14.1.15 (Analogous proceedings) (inclusive) on or
after the date of this Agreement in relation to any member of the
Group incorporated in the United States and whether or not the Agent
shall have previously made any declaration pursuant to clauses 14.2.1
or 14.2.2 above, the events specified in such paragraphs shall
automatically occur as if the Agent had made a declaration pursuant to
such paragraphs and all Commitments shall be cancelled and all amounts
due under this Agreement shall immediately become due and payable
(including full cash cover in respect of all outstanding Swingline
Letters of Credit) together with all accrued interest.
On or at any time after the making of any such declaration, the Agent
or the Swingline Bank (as the case may be) shall be entitled, to the
exclusion of the Borrowers, to select the duration of each period for
the calculation of interest in relation to any outstanding Advances or
other sums payable under this Agreement.
14.3 Demand basis
If, pursuant to clause 14.2.2, the Agent declares all outstanding
Advances and Utilisations to be due and payable on demand then the
Agent may (and, if so instructed by the Majority Banks, shall) at any
time by written notice to the Borrowers (a) call for repayment of the
Advances and Utilisations on such date as may be specified in such
notice whereupon the Advances and Utilisations shall become due and
payable on the date so specified together with all interest and
commitment commission accrued and all other sums payable under this
Agreement (including full cash cover in respect of all outstanding
Swingline Letters of Credit) or (b) withdraw such declaration with
effect from the date specified in such notice.
15 Indemnities
15.1 Miscellaneous indemnities
Each Borrower shall on demand indemnify each Bank Finance Party
without prejudice to any of their other rights under the Bank Finance
Documents, against any loss (including loss of Margin) or expense
which such Bank Finance Party shall certify as sustained or incurred
by it as a consequence of:
15.1.1 any default in payment by any member of the Group of any sum under any
of the Bank Finance Documents when due;
15.1.2 the occurrence of any other Event of Default;
15.1.3 any prepayment of all or part of any Advance being made otherwise than
on its Repayment Date; or
15.1.4 any Advance not being made or Swingline Letter of Credit not being
issued for any reason (excluding any default by the Agent, the
Swingline Bank, any Arranger or any Bank) after a Drawdown Notice or
an L/C Application has been given;
including, in any such case, but not limited to, any loss or expense
sustained or incurred by such Bank in maintaining or funding all or
any part of its Contribution or in liquidating or re-employing
deposits from third parties acquired or contracted for to fund all or
any part of its Contribution or any other amount owing to such Bank.
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15.2 Currency of account; currency indemnity
No payment by a Borrower under any Bank Finance Document which is made
in a currency other than the currency ("Contractual Currency") in
which such payment is required to be made pursuant to the relevant
Bank Finance Document shall discharge the obligation in respect of
which it is made except to the extent of the net proceeds in the
Contractual Currency received by the Agent, the Swingline Bank or the
Overdraft Bank, as appropriate upon the sale of the currency so
received, after taking into account any premium and costs of exchange
in connection with such sale. For the avoidance of doubt no Bank
Finance Party shall be obliged to accept any such payment in a
currency other than the Contractual Currency nor shall any Bank
Finance Party be liable to any Borrower for any loss or alleged loss
arising from fluctuations in exchange rates between the date on which
such payment is so received by the Agent, the Swingline Bank or the
Overdraft Bank, as appropriate and the date on which the Agent, the
Swingline Bank or the Overdraft Bank, as appropriate effects such
sale, as to which the Agent, the Swingline Bank or the Overdraft Bank,
as appropriate shall (as against such Borrower) act in good faith. If
any sum due from a Borrower under any Bank Finance Document or any
order or judgment given or made in relation hereto is required to be
converted from the Contractual Currency or the currency in which the
same is payable under such order or judgment (the "first currency")
into another currency (the "second currency") for the purpose of (a)
making or filing a claim or proof against a Borrower, (b) obtaining an
order or judgment in any court or other tribunal or (c) enforcing any
order or judgment given or made in relation to any Bank Finance
Document, such Borrower shall indemnify and hold harmless the Bank
Finance Parties from and against any loss suffered as a result of any
difference 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
Finance Party may in the ordinary course of business 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. Any amount due from a Borrower under the indemnity
contained in this clause 15.2 shall be due as a separate debt and
shall not be affected by judgment being obtained for any other sums
due under or in respect of this Agreement and the term "rate of
exchange" includes any premium and costs of exchange payable in
connection with the purchase of the first currency with the second
currency.
15.3 ECB reserve requirements
The Parent shall on demand indemnify each Funder against any cost or
loss suffered by it as a result of complying with European System of
Central Banks reserve requirements to the extent such requirements
relate to its participation in the Facilities and are not recoverable
by such Funder under clause 16.2.
16 Unlawfulness and increased costs; mitigation
16.1 Unlawfulness
If, after the date of this Agreement it is or becomes contrary to any
applicable law or regulation for any Funder to contribute to Advances
or to maintain its Commitment or fund its Contribution or to fulfil
its obligations under clause 6 or clause 7 or for the Swingline Bank
to issue or perform its obligations under Swingline Letters of Credit
such Funder shall promptly, through the Agent, notify the Parent of
(i) the obligations which have been rendered illegal, (ii) the date on
which the illegality has or will take effect and (iii) details of the
relevant law or regulation whereupon:
16.1.1 such Funder's Commitment under the Revolving Credit Facilities, the
Swingline Facility or the Overdraft Facility, as relevant shall be
reduced to zero but without prejudice to the obligations to indemnify
the Swingline Bank in relation to Swingline Letters of Credit and the
Overdraft Bank in relation to the Overdraft Facility pursuant to
clauses 6.12 and 7.2 which will remain in full force and effect until
the Swingline Bank or the Overdraft Bank, as relevant notifies such
Bank that it is satisfied that the Swingline Borrower or the Overdraft
Borrower, as relevant, has cash callateralised the amount of that
Funder's indemnification exposure in respect of outstanding Swingline
Letters of Credit or the Overdraft Facility; and
73
16.1.2 the Borrowers shall be obliged to:
(a) prepay the Contribution of such Funder on a future specified date
not being earlier than the latest date, if such illegality has
taken effect, permitted by the relevant law or regulation; and
(b) pay an amount equivalent to, and in the currency of, such
indemnification exposure in respect of each outstanding Swingline
Letter of Credit and the Overdraft Facility, to the Agent as cash
collateral for such exposure; and
(c)
(i) if it becomes so contrary to any law or regulation prior to
the proposed date of opening the Swingline Letter of Credit
for the Swingline Bank to open such Swingline Letter of
Credit, the obligations of the Swingline Bank to issue
Swingline Letters of Credit shall forthwith terminate; and
(ii) if it becomes so contrary to any law or regulation after the
L/C Issue Date for the Swingline Bank to perform its
obligations under a Swingline Letter of Credit then the
Agent shall, at the request and on behalf of the Swingline
Bank, give notice to the relevant Borrower requiring the
relevant Borrower to cause the liability of the Swingline
Bank under that Swingline Letter of Credit to be discharged
in full to the satisfaction of the Swingline Bank.
Any prepayment pursuant to this clause 16.1 shall be made together
with all amounts referred to in clause 8.7
16.2 Increased costs
If the result of any change in, or in the official interpretation or
application of, or the introduction of, any law or any regulation,
request or requirement (whether or not having the force of law, but,
if not having the force of law, with which the relevant Funder or, as
the case may be, its holding company habitually complies), including
(without limitation) those relating to Taxation, capital adequacy,
liquidity, reserve assets, cash ratio deposits and special deposits,
(including European System of Central Banks reserve requirements) is
to:
16.2.1 subject any Funder to Taxes or change the basis of Taxation of any
Funder with respect to any payment under this Agreement (other than
Taxes or Taxation on the overall net income, profits or gains of such
Funder imposed in the jurisdiction in which its principal or lending
office under this Agreement is located); and/or
16.2.2 increase the cost to, or impose an additional cost on, any Funder or
its holding company in making or keeping available all or part of such
Funder's Commitment or maintaining or funding all or part of such
Funder's Contribution; and/or
16.2.3 reduce the amount payable or the effective return to any Funder under
this Agreement; and/or
16.2.4 reduce any Funders or its holding company's rate of return on its
overall capital by reason of a change in the manner in which it is
required to allocate capital resources to such Funders obligations
under this Agreement; and/or
16.2.5 require any Funder or its holding company to make a payment or forgo a
return calculated by reference to or on any amount received or
receivable by such Funder under this Agreement; and/or
16.2.6 require any Funder or its holding company to incur or sustain a loss
(including a loss of future potential profits) by reason of being
obliged to deduct all or part of such Funder's Commitment, exposure
under Swingline Letters of Credit or Contribution from its capital for
regulatory purposes,
74
then and in each such case (but subject to clause 16.3):
(a) such Funder shall notify the Parent through the Agent in writing
of such event promptly upon its becoming aware of the same; and
(b) the Borrowers shall on demand, made at any time whether or not
such Funder's Contribution or exposure under Swingline Letters of
Credit has been repaid, pay to the Agent for the account of such
Funder the amount which such Funder specifies (in a certificate
setting forth the basis of the computation of such amount but not
including any matters which such Funder or its holding company
regards as confidential) is required to compensate such Funder
and/or its holding company for such liability to Taxes, increased
or additional cost, reduction, payment, forgone return or loss.
For the purposes of this clause 16.2 and clause 16.4 "holding company"
means, in relation to a Funder, the company or entity (if any) within
the consolidated supervision of which such Funder is included.
16.3 Exceptions
Nothing in clause 16.2 shall entitle any Funder to receive any amount
in respect of compensation for any such liability to Taxes, increased
or additional cost, reduction, payment, forgone return or loss to the
extent that the same:
16.3.1 is taken into account in calculating the Additional Cost; or
16.3.2 is the subject of an additional payment under clause 10.5; or
16.3.3 arises as a consequence of (or of any law or regulation implementing)
(i) the proposals for international convergence of capital measurement
and capital standards published by the Basle Committee on Banking
Regulations and Supervisory Practices in July 1988 and/or (ii) the
Banking Consolidation Directive (2000/12/EC) of the European Union (in
each case) unless it results from any change in, or in the
interpretation or application of, such proposals or any such
applicable directive (or any law or regulation implementing the same)
occurring after the date hereof.
16.4 Mitigation
If circumstances arise which would, or would upon the giving of
notice, result in:
16.4.1 the Borrowers being required to make an increased payment to any
Funder pursuant to clause 10.5;
16.4.2 the reduction of any Funder's Commitment to zero or the Borrowers
being required to prepay any Funder's Contribution pursuant to clause
16.1; or
16.4.3 the Borrowers being required to make a payment to any Funder to
compensate such Funder or its holding company for a liability to
Taxes, increased or additional cost, reduction, payment, forgone
return or loss pursuant to clause 16.2,
then, without in any way limiting, reducing or otherwise qualifying
the obligations of the Borrowers under clause 10 and this clause 16,
such Funder shall, in consultation with the Agent, endeavour to take
such reasonable steps (and/or, in the case of clause 16.2 and where
the increased or additional cost, reduction, payment, forgone return
or loss is that of its holding company, endeavour to procure that its
holding company takes such reasonable steps) as are open to it (or, as
the case may be, its holding company) to mitigate or remove such
circumstances (including (in the case of such Funder) the transfer of
its rights and obligations under this Agreement to another bank or
financial institution) unless the taking of such steps might (in the
opinion of such Funder) be prejudicial to such Funder (or, as the case
may be, its holding company) or be in conflict with such Funder's (or,
as the case may be, its holding
75
company's) general banking policies or involve such Funder (or, as the
case may be, its holding company) in expense or an increased
administrative burden.
16.5 Regulation D Costs
Each US Borrower shall, within 10 Banking Days (if it is the first
occasion on which the relevant Bank makes the demand) or 5 Banking
Days (in all other cases) of demand by any Bank (through the Agent),
pay to that Bank the amount of any Regulation D Costs actually
incurred by that Bank in respect of its participation in any loan made
by it to that US Borrower.
17 Set-off and pro rata payments
17.1 Set-off
Following a Default which is continuing unremedied and unwaived each
Borrower authorises each Bank Finance Party to apply any credit
balance to which such Borrower is then entitled on any account of such
Borrower with such Bank Finance Party at any of its branches in or
towards satisfaction of any sum then due and payable from such
Borrower to such Bank Finance Party under this Agreement. For this
purpose each Bank Finance Party is authorised to purchase with the
moneys standing to the credit of such account such other currencies as
may be necessary to effect such application. None of the Bank Finance
Party shall be obliged to exercise any right given to it by this
clause 17.1. Each Bank Finance Party shall notify the Agent and the
Parent (giving full details) forthwith upon the exercise or purported
exercise of any right of set-off and the Agent shall inform the other
Bank Finance Parties. Failure by any Bank Finance Party to notify the
Agent and the Parent shall not affect the validity of the set-off.
17.2 Pro rata payments
17.2.1 If at any time any Bank (the "Recovering Bank") receives or recovers
any amount owing to it by any Borrower under this Agreement by direct
payment, set-off or in any manner other than by payment through the
Agent pursuant to clause 10.1 or 10.11 (not being a payment received
from a Substitute or sub-participant in such Bank's Contribution or
any other payment of an amount due to the Recovering Bank for its sole
account pursuant to clauses 8.5, 9, 10.5, 15, 16.1, 16.2 or 16.5), the
Recovering Bank shall, within two Banking Days of such receipt or
recovery (a "Relevant Receipt") notify the Agent of the amount of the
Relevant Receipt. If the Relevant Receipt exceeds the amount which the
Recovering Bank would have received if the Relevant Receipt had been
received by the Agent and distributed pursuant to clause 10.1 or 10.11
(as the case may be) then:
(a) within two Banking Days of demand by the Agent, the Recovering
Bank shall pay to the Agent an amount equal (or equivalent) to
the excess;
(b) the Agent shall treat the excess amount so paid by the Recovering
Bank as if it were a payment made by the Borrowers and shall
distribute the same to the Banks (other than the Recovering Bank)
in accordance with clause 10.1 or clause 10.11, as the case may
be; and
(c) as between the Borrowers and the Recovering Bank the excess
amount so redistributed shall be treated as not having been paid
but the obligations of the Borrowers to the other Banks shall, to
the extent of the amount so re-distributed to them, be treated as
discharged.
17.2.2 If any part of the Relevant Receipt subsequently has to be wholly or
partly refunded by the Recovering Bank (whether to a liquidator or
otherwise) each Bank to which any part of such Relevant Receipt was so
re-distributed shall on request from the Recovering Bank repay to the
Recovering Bank such Bank's pro rata share of the amount which has to
be refunded by the Recovering Bank.
17.2.3 Each Bank shall on request supply to the Agent such information as the
Agent may from time to time request for the purpose of this clause
17.2.
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17.2.4 Notwithstanding the foregoing provisions of this clause 17.2 no
Recovering Bank shall be obliged to share any Relevant Receipt which
it receives or recovers pursuant to legal proceedings taken by it to
recover any sums owing to it under this Agreement with any other party
which has a legal right to, but does not, either join in such
proceedings or commence and diligently pursue separate proceedings to
enforce its rights in the same or another court (unless the
proceedings instituted by the Recovering Bank are instituted by it
without prior notice having been given to such party through the
Agent).
17.3 No release
For the avoidance of doubt it is hereby declared that failure by any
Recovering Bank to comply with the provisions of clause 17.2 shall not
release any other Recovering Bank from any of its obligations or
liabilities under clause 17.2.
17.4 No charge
The provisions of this clause 17 shall not, and shall not be construed
so as to, constitute a charge by a Bank over all or any part of a sum
received or recovered by it in the circumstances mentioned in clause
17.2.
18 Assignment, substitution, lending offices, Additional Borrowers and
Affiliates of Banks
18.1 Benefit and burden
This Agreement shall be binding upon, and enure for the benefit of,
the Bank Finance Parties and their respective successors and permitted
assigns.
18.2 No assignment by Borrower
None of the Borrowers may assign or otherwise transfer any of their
rights or obligations under this Agreement without the prior written
consent of all the Banks, the Swingline Bank and the Overdraft Bank.
18.3 Substitution
Each Bank (an "Existing Bank") may transfer, by way of novation (but
not by way of assignment or otherwise), all or any part of its rights,
benefits and/or obligations under this Agreement to another bank or
financial institution (a "Substitute") with the consent in writing of
the Swingline Bank and the Overdraft Bank, such consent not to be
unreasonably withheld or delayed and after consultation with the
Parent but without requiring the consent of any Obligor. Any such
novation shall be effected upon not less than 5 Banking Days' prior
notice by delivery to the Agent of a duly completed Substitution
Certificate duly executed by the Existing Bank and the Substitute. On
the Transfer Date (as specified and defined in a Substitution
Certificate so executed and delivered), to the extent that the
Commitment and Contribution of the Existing Bank are expressed in a
Substitution Certificate to be the subject of the novation in favour
of the Substitute effected pursuant to this clause 18.3, by virtue of
the counter-signature of the Substitution Certificate by the Agent
(for itself and the other parties to this Agreement and the Security
Trust Deed):
(a) the existing parties to this Agreement, the Security Trust Deed,
the Common Security Trust Deed and the Intercreditor Agreement
and the Existing Bank shall be released from their respective
obligations towards one another under this Agreement, the
Security Trust Deed, the Common Security Trust Deed and the
Intercreditor Agreement ("discharged obligations") and their
respective rights against one another under this Agreement, the
Security Trust Deed, the Common Security Trust Deed and the
Intercreditor Agreement ("discharged rights") shall be cancelled;
77
(b) the Substitute party to the relevant Substitution Certificate and
the existing parties to this Agreement, the Security Trust Deed,
the Common Security Trust Deed and the Intercreditor Agreement
(other than such Existing Bank) shall assume obligations towards
each other which differ from the discharged obligations only
insofar as they are owed to or assumed by such Substitute instead
of to or by such Existing Bank; and
(c) the Substitute party to the relevant Substitution Certificate and
the existing parties to this Agreement, the Security Trust Deed,
the Common Security Trust Deed and the Intercreditor Agreement
(other than such Existing Bank) shall acquire rights against each
other which differ from the discharged rights only insofar as
they are exercisable by or against such Substitute instead of by
or against such Existing Bank,
and, on such Transfer Date, the Substitute shall pay to the Agent a
fee of (pound)1,000 for its own account. The Agent shall promptly
notify the other Banks and the Parent of the receipt by it of any
Substitution Certificate and shall promptly deliver a copy of such
Substitution Certificate to the Parent.
18.4 Limitation on certain obligations
18.4.1 If, at the time of any novation or change in lending office by any
Funder circumstances exist which would oblige the Borrowers to pay to
the Substitute (or, in the case of change in lending office, the
relevant Funder) under clauses 10.1, 10.5 or 16 any sum in excess of
the sum (if any) which they would have been obliged to pay to that
Funder under the relevant clause in the absence of that novation or
change of lending office, the Borrowers shall not be obliged to pay
that excess.
18.4.2 [deleted].
18.5 Reliance on Substitution Certificate
The Bank Finance Parties, the Borrowers and the Guarantors shall be
fully entitled to rely on any Substitution Certificate delivered to
the Agent in accordance with the foregoing provisions of this clause
18 which is complete and regular on its face as regards its contents
and purportedly signed on behalf of the relevant Existing Bank and the
Substitute and none of the Bank Finance Parties, the Borrowers and the
Guarantors shall have any liability or responsibility to any party as
a consequence of placing reliance on and acting in accordance with any
such Substitution Certificate if it proves to be the case that the
same was not authentic or duly authorised.
18.6 Authorisation of Agent
Each party to this Agreement irrevocably authorises the Agent to
counter-sign each Substitution Certificate on its behalf for the
purposes of clause 18.3 without any further consent of, or
consultation with, such party.
18.7 Construction of certain references
If any Funder novates all or any part of its rights, benefits and
obligations as provided in clause 18.3 or 19.14 all relevant
references in this Agreement to such Funder shall thereafter be
construed as a reference to such Funder and/or its Substitute to the
extent of their respective interests.
18.8 Lending offices
Each Funder shall lend through its office at the address specified in
Schedule 2 or, as the case may be, in any relevant Substitution
Certificate or through any other office of such Funder selected from
time to time by such Funder through which such Funder wishes to lend
for the purposes of this Agreement. If the office through which a
Funder is lending is changed pursuant to this clause 18.8, such Funder
shall notify the Agent and the Borrowers promptly of such change.
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18.9 Disclosure of Information
18.9.1 Subject to clause 18.9.2, a Funder may disclose to a prospective
transferee or to any other person who may propose entering into
contractual relations with such Funder in relation to this Agreement
such information about the Borrowers and the Group as such Funder
shall consider appropriate.
18.9.2 No Funder may disclose any information about any Borrower or the Group
to an actual or potential transferee or other person without the prior
consent of the Parent (such consent not to be unreasonably withheld or
delayed) unless such Funder has obtained from the actual or potential
transferee or other person a confidentiality undertaking substantially
in the form recommended at such time by the Loan Market Association
(or in any other form agreed between the Parent and the Agent).
18.9.3 Any information furnished pursuant to this Agreement to any Bank
Finance Party shall be kept confidential by the recipient and the Bank
Finance Parties hereby agree to keep the information confidential,
save that the provisions of this clause 18.9.3 and clause 18.9.2 shall
not apply:
(a) to any information already known to the recipient;
(b) to any information subsequently received by the recipient which
it would otherwise be free to disclose;
(c) to any information which is or becomes public knowledge otherwise
than by reason of a breach of confidentiality by the Bank Finance
Party concerned;
(d) to any extent that the recipient is required to disclose the same
pursuant to any law regulation or order of any court; and
(e) to any information disclosed to auditors or other professional
advisers who are subject to a duty of confidentiality or any
other person who undertakes with the Parent to keep the
information confidential.
18.10 Restrictions on novations
18.10.1 Where a Funder novates part of its rights, benefits and obligations
pursuant to clause 18.3, that Funder must novate equal fractions of
its Commitment and Contribution (if any) in respect of the Facilities
and, if at the time when such novation takes effect more than one
Revolving Credit Advance is outstanding, the novation of its
Contribution shall take effect in respect of the same fraction of each
Revolving Credit Advance. The Substitution Certificate relating to any
such novation shall be completed accordingly.
18.10.2 No novation shall be effected if, as a consequence of that novation
(or as a consequence of that and any other novation between the same
or related parties taking effect at or about the same time), the total
Commitments of a Bank would be less than approximately(pound)5,000,000
(or its equivalent) (unless such Bank is novating all of its
Commitments and Contributions) Provided, however, that for these
purposes persons that are Affiliates of each other shall be treated
together as one Bank so that individual Banks which are Affiliates of
other Banks may have total Commitments of less than
approximately(pound)5,000,000 (or its equivalent) if the total
Commitments of all such Banks which are Affiliates of each other
together are at least approximately(pound)5,000,000 (or its
equivalent).
18.11 Additional Borrowers and Additional Overdraft Borrowers
18.11.1 If the Parent wishes one of its wholly-owned Subsidiaries to become an
Additional Borrower or an Additional Overdraft Borrower, then, with
the prior written approval of all of the Banks, it may deliver to the
Agent the documents listed in part D of Schedule 40.
79
18.11.2 On delivery of a Borrower Accession Agreement or an Overdraft Borrower
Accession Agreement duly executed by the relevant Subsidiary and the
Parent, the Subsidiary concerned will become an Additional Borrower or
an Additional Overdraft Borrower, as the case may be. However, it may
not utilise the Facilities (or, in the case of an Additional Overdraft
Borrower, the Overdraft Facility) until the Agent confirms to the
Banks and the Parent that it has received all the documents referred
to in clause 18.11.1 above in form and substance satisfactory to it,
which it shall do promptly.
18.11.3 Delivery of a Borrower Accession Agreement, or an Overdraft Borrower
Accession Agreement, executed by the Subsidiary and the Parent,
constitutes confirmation by that Subsidiary and the Parent that the
representations and warranties set out in clause 11 (other than the
excluded representations and warranties) to be made by them on the
date of the Borrower Accession Agreement or the Overdraft Borrower
Accession Agreement are correct, as if made with reference to the
facts and circumstances then existing.
18.11.4 The Bank Finance Parties irrevocably authorise the Agent to execute
any duly executed Borrower Accession Agreement or Overdraft Accession
Agreement on their behalf, upon receipt of the prior written approval
of the Banks under clause 18.11.1 above.
18.12 Additional Guarantors
[deleted].
18.13 The Parent as Borrowers' agent
Each Borrower by its execution of this Agreement or an Accession
Certificate, as the case may be, irrevocably appoints and authorises
the Parent:
18.13.1 as agent for such Borrower to receive alt notices, requests, demands
or other communications under this Agreement which shall, without
prejudice to any other effective mode of serving the same, be properly
served on the Borrower concerned if served on the Parent in accordance
with clause 20.1; and
18.13.2 to give all notices (including Orawdown Notices) and instructions and
make such agreements (including, without limitation, any Borrower
Accession Certificate) expressed to be capable of being given or made
by such Borrower or the Borrowers in this Agreement notwithstanding
that they may affect such Borrower without further reference to, or
the consent of, such Borrower and such Borrower shall, as regards the
Bank Finance Parties, be bound thereby as though such Borrower itself
had given such notice or instwctions or made such agreement,
and the Parent is released by the Borrower from s181 German Civil Code
(Burgerliches Gesetzbuch).
18.14 Amendments binding
Without prejudice to the other provisions of this Agreement each
Borrower hereby confirms that if the Parent and the Bank Finance
Parties or any of them enter into any amendment or supplement to or
restatement of this Agreement, the Parenfs execution of any such
amendment or supplement or restatement, Whether or not expressly made
or purportedly made on behalf of such Borrower, shall (to the extent
legally possible) bind such Borrower without the need to obtain any
confirmation or acknowledgement from such Borrower. For this purpose,
each Borrower, for the benefit of the Bank Finance Parties,
irrevocably designates, appoints and empowers the Parent as its agent
and attorney.
18.15 Affiliates of Banks
18.15.1 A Bank may provide for an Affiliate (or branch) to participate in
certain Advances, Utilisations or Swingline Letters of Credit:
80
(a) joining the relevant Affiliate (or branch) in as a Bank by means
of a Substitution Certificate in accordance with clause 18.3 (for
which purpose the Bank (as the "Existing Bank") and the branch
and/or Affiliate (as the "Substitute") shalt adopt as a single
Commitment, such Bank's Commitment in respect of the relevant
Facility; and
(b) giving notice to the Agent and the Parent, detailing the Advances
and/or Utilisation and/or Swingline Letters of Credit in which
that Affiliate (or branch) will participate. In this event such
Bank and its Affiliate (or branch):
(i) will be treated as having a single Commitment, but, for all
other purposes other than that mentioned in paragraph (ii)
below, will be treated as separate Banks; and
(ii) participate in Advances, Utilisations and/or Swingline
Letters of Credit in the manner notified to the Agent and
the Parent in accordance with clause 18.15.1(i) above.
18.15.2 For the purposes of:
(a) compliance with clause 18.3; and
(b) voting in connection with this Agreement or any other Bank
Finance Document, each Bank and its Affiliate (or branch) will be
regarded as a single Bank.
19 Arranger, Agent, Security Trustee, Common Security Trustee and
Reference Banks
19.1 Appointment of Agent
Each Bank irrevocably appoints the Agent as its agent for the purposes
of this Agreement and the other Bank Finance Documents to which it is
a party and irrevocably authorises the Agent (whether or not by or
through employees or agents) to take such action on such Bank's behalf
and to exercise such rights, remedies, powers and discretions as are
specifically delegated to the Agent by this Agreement and/or the other
Bank Finance Documents to which it is a party together with such
powers and discretions as are reasonably incidental thereto (but
subject to any restrictions or limitations specified in this Agreement
and the other Bank Finance Documents to which it is a party). None of
the Agent, the Swingline Bank, the Overdraft Bank, the Arrangers, the
Common Security Trustee or the Security Trustee shall, however, have
any duties, obligations or liabilities (whether fiduciary or
otherwise) to the Banks beyond those expressly stated in this
Agreement or the other Bank Finance Documents to which they are a
party.
19.2 Agent's actions
Any action taken by the Agent under or in relation to this Agreement
and/or the other Bank Finance Documents to which it is a party with
requisite authority, or on the basis of appropriate instructions,
received from the Majority Banks or all the Banks, as the case may be
(or as otherwise duly authorised), shall be binding on all the Banks.
19.3 Agent's duties
The Agent shall:
19.3.1 promptly notify each Bank of the contents of each notice, certificate
or other document received by the Agent from the Borrower under or
pursuant to clauses 12.1.1(a) and 12.1.7;
81
19.3.2 (subject to the other provisions of this clause 19) take such action
or, as the case may be, refrain from taking such action with respect
to the exercise of any of its rights, remedies, powers and discretions
as Agent, as the Majority Banks may reasonably direct; and
19.3.3 serve as the Borrowers' agent solely for the purpose of this clause to
maintain a register (the "Register of Commitments") on which the Agent
will record the Commitments from time to time of each of the Banks,
the Advances made from time to time by each of the Banks and each
repayment in respect of the principal amount of such Advance of each
such Bank. The Agent will open the Register of Commitments on the date
of this Agreement and will enter into and record on the Register of
Commitments on such date the Commitments of all of the Banks as set
forth in Schedule 2. Thereafter the Agent will enter into and record
on the Register of Commitments any and all changes to the Commitments
of any one or more Banks made pursuant to the provisions of this
Agreement, the addition of new Banks and the removal of Banks as a
result of substitutions pursuant to clause 18.3. With respect to any
Bank, the transfer of the Commitments of such Bank and the rights to
the principal of, interest on and fees with respect to any Advance
made pursuant to such Commitment shall not be effective until such
transfer is recorded on the Register of Commitments maintained by the
Agent with respect to ownership of such Commitments and Advances and
prior to such recordation all amounts owing to the transferor with
respect to such Commitments and Advances shall remain owing to the
transferor. The registration of substitution or transfer of all or
part of any Commitments and Advances shall be recorded by the Agent on
the Register of Commitments only upon the acceptance by the Agent of a
property executed and delivered Substitution Certificate.
19.4 Agent's rights
The Agent may:
(a) in the exercise of any right, remedy, power or discretion in
relation to any matter, or in any context, not expressly provided
for by this Agreement and/or the Intercreditor Agreement, act or,
as the case may be, refrain from acting in accordance with the
instructions of the Majority Banks, and shall be fully protected
in so doing;
(b) unless and until it shall have received directions from the
Majority Banks or all the Banks as applicable under this
Agreement and/or the Intercreditor Agreement, take such action,
or refrain from taking such action in respect of a Default of
which the Agent has actual knowledge as it shall deem advisable
in the best interests of the Banks (but shall not be obliged to
do so);
(c) refrain from acting in accordance with any instructions of the
Majority Banks to institute any legal proceedings arising out of
or in connection with this Agreement and/or the Intercreditor
Agreement until it has been indemnified and/or secured to its
satisfaction against any and all costs, expenses or liabilities
(including legal fees) which it would or might incur as a result
unless such costs, expenses or liabilities result from the
Agent's gross negligence or wilful misconduct;
(d) deem and treat (i) each Bank as the person entitled to the
benefit of the Contribution of such Bank for all purposes of this
Agreement and the Intercreditor Agreement unless and until a
Substitution Certificate shall have been filed with the Agent,
and (ii) the office set opposite the name of each Bank in
Schedule 2 or, as the case may be, in any relevant Substitution
Certificate as such Bank's lending office unless and until a
written notice of change of lending office shall have been
received by the Agent; and the Agent may act upon any such notice
unless and until the same is superseded by a further such notice;
(e) rely as to matters of fact which might reasonably be expected to
be within the knowledge of a Borrower upon a certificate signed
by any director of that Borrower on behalf of that Borrower; and
82
(f) do anything which is in its opinion necessary or desirable to
comply with any law or regulation in any jurisdiction.
19.5 No liability of Arrangers, Security Trustee, Common Security Trustee,
Agent, Swingline Bank and Overdraft Bank
19.5.1 None of the Arrangers, the Security Trustee, the Common Security
Trustee, the Agent, the Swingline Bank, the Overdraft Bank or any of
their respective employees and agents shall:
(a) be obliged to request any certificate or opinion under clause 12
or any provision of any other Bank Finance Document or to make
any enquiry as to the use of the proceeds of the Facilities
unless (in the case of the Agent) so required in writing by any
Bank, in which case the Agent shall promptly make the appropriate
request of the relevant Obligor; or
(b) be obliged to make any enquiry as to any breach or default by any
Obligor in the performance or observance of any of the provisions
of any Bank Finance Document or as to the existence of a Default
unless (in the case of the Agent) the Agent has actual knowledge
thereof or has been notified in writing thereof by a Bank, in
which case the Agent shall promptly notify the Banks of the
relevant event or circumstance; or
(c) be obliged to enquire Whether or not any representation or
warranty made by any Obligor pursuant to any Bank Finance
Document is true; or
(d) be obliged to do anything (including, without limitation,
disclosing any document or information) which would, or might in
its opinion, be contrary to any law or regulation or be a breach
of any duty of confidentiality or otherwise be actionable or
render it liable to any person. For the purposes of this clause
19.5.1(d) the parties to this Agreement acknowledge that no
document delivered to the Agent pursuant to the terms of the Bank
Finance Documents by any Obligor is subject to any duty of
confidentiality which would restrict the Agent's ability to
deliver copies of the same to the Banks provided that this clause
19.5.1(d) shall not otherwise affect the duty of the Agent or the
Banks to keep any confidential information supplied to it or them
by any member of the Group confidential; or
(e) be obliged to account to any Bank Finance Party for any sum or
the profit element of any sum received by it for its own account;
or
(f) be obliged to institute any legal proceedings arising out of or
in connection with this Agreement or the Intercreditor Agreement
other than on the instructions of the Majority Banks and (Where
applicable) in accordance with the Intercreditor Agreement; or
(g) be liable to any Bank Finance Parties for any action taken or
omitted under or in connection with this Agreement, the
Facilities or the Intercreditor Agreement unless caused by its
gross negligence or wilful misconduct.
19.5.2 For the purposes of this clause 19.5 none of the Agent, the Swingline
Bank, the Overdraft Bank, the Arrangers, the Common Security Trustee
or the Security Trustee shall be treated as having actual knowledge of
any matter of which the corporate finance or any other division
outside the agency or loan administration department of the person for
the time being acting as the Agent, the Arrangers, the Common Security
Trustee or the Security Trustee may become aware in the context of
corporate finance, advisory or lending activities from time to time
undertaken by the Agent, the Swingline Bank, the Overdraft Bank, the
Arrangers, the Common Security Trustee or the Security Trustee for any
member of the Group or any other person which may be a trade
competitor of any member of the Group or may otherwise have commercial
interests similar to those of any member of the Group.
83
19.6 Non-reliance on Arrangers, Security Trustee, Common Security Trustee,
Agent, Swingline Bank or Overdraft Bank
Each Bank acknowledges that it has not relied on any statement,
opinion, forecast or other representation made by the Arrangers, the
Security Trustee, the Common Security Trustee, the Agent or the
Swingline Bank or Overdraft Bank to induce it to enter into this
Agreement or any other Bank Finance Document and that it has made and
will continue to make, without reliance on the Agent, the Swingline
Bank, Overdraft Bank, the Security Trustee, the Common Security
Trustee or any Arranger and based on such documents as it considers
appropriate, its own appraisal of the creditworthiness of the members
of the Group and its own independent investigation of the financial
condition, prospects and affairs of the members of the Group in
connection with the making and continuation of the Facilities under
this Agreement and the other Bank Finance Documents. None of the
Security Trustee, the Common Security Trustee, the Arrangers, the
Agent, the Swingline Bank, the Overdraft Bank shall (except for
documents and/or notices which the Security Trustee, the Common
Security Trustee, the Arrangers and/or the Agent (i) have agreed to
provide to the Banks or (ii) have received with sufficient copies for
distribution to the Banks) have any duty or responsibility, either
initially or on a continuing basis, to provide any Bank with any
credit or other information with respect to any Borrower whether
coming into its possession before the making of any Advance or at any
time or times thereafter, other than (in the case of the Agent) as
provided in clause 19.3.1.
19.7 No Responsibility on Arrangers, the Security Trustee, the Common
Security Trustee, the Agent, the Swingline Bank or the Overdraft Bank
for any Borrower's performance
None of the Arrangers, the Security Trustee, the Common Security
Trustee, the Agent, the Swingline Bank or the Overdraft Bank shall
have any responsibility or liability to any Bank:
19.7.1 on account of the failure of any member of the Group to perform its
obligations under the Bank Finance Documents; or
19.7.2 for the financial condition of any member of the Group; or
19.7.3 for the completeness or accuracy of any statements, representations or
warranties in the Bank Finance Documents or the Information Package or
any Information Memorandum or any document delivered under any such
documents; or
19.7.4 for the execution, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence the Bank Finance Documents
or any certificate, report or other document executed or delivered
under any of the Bank Finance Documents; or
19.7.5 otherwise in connection with the Facilities or its negotiation or for
acting (or, as the case may be, refraining from acting) in accordance
with the instructions of the Majority Banks or all the Banks as
applicable under this Agreement.
19.7.6 to ascertain whether all deeds and documents which should have been
deposited with it under or pursuant to any of the Security Documents
have been so deposited; or
19.7.7 to investigate or make any enquiry into the title of the Obligors to
any of the assets listed in the Schedules to the Security Documents;
or
19.7.8 for the failure to register any of the Security Documents; or
19.7.9 for the failure to register any of the Security Documents in
accordance with the provisions of the documents of title of the
Obligors to any of the assets listed in the Schedules to the Security
Documents; or
19.7.10 for the failure to effect or procure the registration of any floating
charge created by any of the Security Documents by registering under
the Land Registration ▇▇▇ ▇▇▇▇ any notice, caution or other entry
prescribed by or pursuant to the provisions of the said Act against
any land for the time being forming part of the security; or
84
19.7.11 for the failure to take or require any Obligor to take any steps to
render any of the Security Documents effective or to secure the
creation of any ancillary charge under the laws of the jurisdiction
concerned; or
19.7.12 (save as otherwise provided in this clause 19) for taking or omitting
to take any other action under or in relation to the Security
Documents or any aspect thereof; or
19.7.13 in the case of the Arranger and the Agent, on account of the failure
of the Security Trustee or the Common Security Trustee to perform or
discharge any of their relevant duties or obligations under the
Security Documents; or
19.7.14 (save as otherwise provided in this clause 19) otherwise in connection
with the Facilities or their negotiation or for acting (or, as the
case may be, refraining from acting) in accordance with the
instructions of the Majority Banks.
19.8 Reliance on documents and professional advice
The Arrangers, the Security Trustee, the Common Security Trustee, the
Agent, the Swingline Bank and the Overdraft Bank shall be entitled to
rely on any communication, instrument or document believed by it to be
genuine and correct and to have been signed or sent by the proper
person and shall be entitled to rely as to legal or other professional
matters on opinions and statements of any legal or other professional
advisers selected or approved by it (including those in the Agent's,
the Swingline Bank's, Overdraft Banks, the Security Trustee's, the
Common Security Trustee's or either Arranger's employment).
19.9 Other dealings
Each of the Arrangers, the Security Trustee, the Common Security
Trustee, the Agent, the Swingline Bank and the Overdraft Bank may,
without any liability to account to the Banks, accept deposits from,
lend money to, and generally engage in any kind of banking or other
business with, and provide advisory or other services to, any member
of the Group or any of their respective Subsidiaries or any of the
Banks as if it were not an Arranger, the Security Trustee, the Common
Security Trustee, the Agent, the Swingline Bank or the Overdraft Bank
as the case may be.
19.10 Rights of Agent, Swingline Bank, Overdraft Bank, Security Trustee,
Common Security Trustee and Arrangers as Bank; no partnership
With respect to its own Commitment and Contribution (if any) the
Agent, the Swingline Bank, Overdraft Bank, the Security Trustee, the
Common Security Trustee and each Arranger shall have the same rights
and powers under this Agreement as any other Bank and may exercise the
same as though it were not performing the duties and functions
delegated to it under this Agreement and/or the Security Documents and
the term "Banks" shall, unless the context clearly otherwise
indicates, include the Agent in such parties in their individual
capacity as Banks. This Agreement shall not and shall not be construed
so as to constitute a partnership between the parties or any of them.
19.11 Amendments; waivers
19.11.1 Subject to clause 19.11.2, the Agent may. with the consent of the
Majority Banks (or if and to the extent expressly authorised by the
other provisions of this Agreement or the Security Documents) and, if
so instructed by the Majority Banks, shall (i) agree with the Parent
(on behalf of all the Obligors) amendments or modifications to the
Credit Documents and/or vary or waive breaches of, or defaults under,
or otherwise excuse performance of, any provision of the Credit
Documents by any Obligor and/or (ii) authorise the Security Trustee or
the Common Security Trustee (on behalf of the Bank Finance Parties) to
agree with the Parent (on behalf of all the Guarantors and other Group
Members who are a party to a Security Document) amendments or
modifications to the Security Documents and/or vary or waive breaches
of, or defaults under, or otherwise excuse performance of, any
provision of any of the Security Documents by any Guarantor or other
Group Member who is a party to a
85
Security Document. Any such action so authorised and effected by the
Agent shall be documented in such manner as the Agent shall (with the
approval of the Majority Banks) determine, shall be promptly notified
to the Banks by the Agent and (without prejudice to the generality of
clause 19.2) shall be binding on all the Banks.
19.11.2 Except with the prior written consent of all the Banks, the Agent
shall not have authority on behalf of the Banks to agree with the
Obligors (or authorise the Security Trustee or the Common Security
Trustee to so agree) any amendment or modification to this Agreement
or any Security Document or to grant waivers in respect of breaches or
defaults or to vary or excuse performance of or under this Agreement
or any Security Document by any Obligor, if the effect of such
amendment, modification, waiver, variation or excuse would be to (i)
reduce the Margin, (ii) postpone the due date or, save as expressly
provided for in this Agreement, reduce the amount of any payment of
principal, interest, commitment commission or other amount payable by
any Obligors under this Agreement or any Security Document or
reduction of the Total Commitments, (iii) change the currency in which
any amount is payable by any Obligor under this Agreement or any
Security Document, (iv) increase any Bank's Commitment, (v) extend the
Availability Period, (vi) change the definition of "Majority Banks" in
clause 1.2, (vii) change any provision of this Agreement or any
Security Document referred to in any other provision in relation to
which an amendment would require the consent of all the Banks or which
expressly or by implication requires the approval or consent of all
the Banks such that the relevant approval or consent may be given
otherwise than with the sanction of all the Banks, (viii) change the
order of distribution under clause 10.11, (ix) change clause 17.2 or
this clause 19.11 or (x) release any Guarantor from its obligations
under the Guarantee to which it is a party.
19.12 Reimbursement and Indemnity by Banks
Each Bank shall reimburse the Security Trustee, the Common Security
Trustee, the Agent and the Swingline Bank and the Overdraft Bank
(rateably in accordance with such Bank's Commitment or Contribution),
to the extent that the Security Trustee, the Common Security Trustee,
the Agent, the Swingline Bank or the Overdraft Bank (as the case may
be) is not reimbursed by the Borrowers, for the costs, charges and
expenses incurred by the Security Trustee, the Common Security
Trustee, the Agent, the Swingline Bank or the Overdraft Bank in
connection with or in contemplation of, the enforcement or attempted
enforcement of, or the preservation or attempted preservation of any
rights under, or in carrying out its duties under, the Bank Finance
Documents including (in each case) the fees and expenses of legal or
other professional advisers except to the extent that the costs,
charges or expenses arise from the gross negligence or wilful
misconduct of the Agent, the Security Trustee, the Common Security
Trustee, the Swingline Bank or the Overdraft Bank. Each Bank shall on
demand indemnify the Agent, the Security Trustee, the Common Security
Trustee, the Swingline Bank and the Overdraft Bank (rateably in
accordance with its Commitment or Contribution) against all
liabilities, damages, costs and claims whatsoever incurred by the
Agent, the Security Trustee, the Common Security Trustee, the
Swingline Bank or the Overdraft Bank (as the case may be) in
connection with the Bank Finance Documents or the performance of its
duties under any Bank Finance Documents or any action taken or omitted
by the Agent, the Security Trustee, the Common Security Trustee or the
Swingline Bank or the Overdraft Bank (as the case may be) under any
Bank Finance Documents, unless such liabilities, damages, costs or
claims arise from the Agent's, the Security Trustee's, the Common
Security Trustee's, the Swingline Bank's or the Overdraft Bank's (as
the case may be) own gross negligence or wilful misconduct.
19.13 Retirement of Agent
19.13.1 The Agent may retire from its appointment as Agent under this
Agreement and the relevant Bank Finance Documents having given to the
Parent and each of the Banks not less than 30 days' notice of its
intention to do so, provided that no such retirement shall take effect
unless there has been appointed by the Banks after consultation with
the Parent as a successor agent:
(a) a Bank nominated by the Majority Banks or, failing such a
nomination,
86
(b) any reputable and experienced bank or financial institution with
offices in London nominated by the Agent.
Any corporation into which the Agent may be merged or converted or any
corporation with which the Agent may be consolidated or any
corporation resulting from any merger, conversion, amalgamation,
consolidation or other reorganisation to which the Agent shall be a
party shall, to the extent permitted by applicable law, be the
successor Agent under this Agreement and the relevant Bank Finance
Documents without the execution or filing of any document or any
further act on the part of any of the parties to this Agreement or, as
the case may be, the relevant Bank Finance Documents, save that notice
of any such merger, conversion, amalgamation, consolidation or other
reorganisation shall forthwith be given to the Parent and the Banks.
19.13.2 Upon any such successor as aforesaid being appointed, the retiring
Agent shall be discharged from any further obligation under this
Agreement and the relevant Bank Finance Documents (but shall continue
to have the benefit of this clause 19 in respect of any action it has
taken or refrained from taking prior to such discharge) and its
successor and each of the other parties to this Agreement or, as the
case may be, the relevant Bank Finance Documents shall have the same
rights and obligations among themselves as they would have had if such
successor had been a party to this Agreement or, as the case may be,
the relevant Bank Finance Documents in place of the retiring Agent.
The retiring Agent shall (at the expense of the Parent) provide its
successor with copies of such of its records as its successor
reasonably requires to carry out its functions as such.
19.14 Retirement of Overdraft Bank and Swingline Bank
With the prior consent of the Parent, not to be unreasonably withheld
or delayed, the Overdraft Bank or the Swingline Bank may resign from
its appointment as Overdraft Bank or Swingline Bank, as the case may
be, under this Agreement, provided that no such retirement shall take
effect unless a successor Overdraft Bank or Swingline Bank, as the
case may be, has been appointed by the Parent and has entered into
such arrangements as may be required to become a party to this
Agreement as Overdraft Bank or Swingline Bank (as the case may be) and
to assume the rights and obligations of the original Overdraft Bank or
Swingline Bank (as the case may be).
19.15 Change of Reference Banks
If (a) the whole of the Contribution (if any) of any Reference Bank is
prepaid and the whole of its Commitment cancelled, (b) the Commitment
(if any) of any Reference Bank is reduced to zero in accordance with
clause 8.5 or 16.1, (c) a Reference Bank novates the whole of its
rights and obligations (if any) as a Bank under this Agreement or (d)
any Reference Bank ceases to provide quotations to the Agent for the
purposes of determining LIBOR or EURIBOR (where such quotations are
required having regard to the definition of "LIBOR" or EURIBOR" in
clause 1.2) the Agent may, acting on the instructions of the Majority
Banks, terminate the appointment of such Reference Bank and with the
agreement of the Parent (not to be unreasonably withheld or delayed)
appoint another Bank to replace such Reference Bank.
20 Notices and other matters
20.1 Notices
Every notice, request, demand or other communication under this
Agreement shall:
20.1.1 be in writing delivered personally or by first-class prepaid letter
(airmail if available) or telefax;
20.1.2 be deemed to have been received, subject as otherwise provided in this
Agreement, in the case of a letter when delivered and, in the case of
a telefax, when a complete and legible copy is received by the
addressee (unless the date of despatch is not a business day in the
country of the addressee or the time of despatch of any telefax is
after the close of business
87
in the country of the addressee in which case it shall be deemed to
have been received at the opening of business on the next such
business day);
20.1.3 if sent by telefax to the Agent, be confirmed in writing by
first-class prepaid letter (airmail if available) provided that non
receipt of such letter by the Agent shall not invalidate the notice;
and
20.1.4 be sent:
(a) to each Borrower do the Parent at:
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
Telefax: 020 7262 4300
Attention: The Treasurer
(b) to the Agent at:
HSBC Investment Bank plc
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telefax: 0207 779 1717/1718
Attention: Syndicated Finance Agency
(c) to the Swingline Bank at:
The Bank of New York, as Swingline Bank
▇/▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ -▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
▇▇▇
Telefax: 001 212 635 6365
Attention: Agency Department
(d) to the Overdraft Bank at:
HSBC Bank plc
▇▇-▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telefax: 020 7260 4800
Attention: ▇▇▇▇ ▇▇▇
(e) to each Bank
at its address or telefax number
specified in Schedule 2 or
in any relevant Substitution Certificate
or to such other address or telefax number as is notified by the
relevant party to the other parties to this Agreement.
20.2 Notices through the Agent
Every notice, request, demand or other communication under this
Agreement to be given by any Borrower to any other party shall be
given to the Agent for onward transmission as appropriate and to be
given to any Borrower shall (except as otherwise provided in this
Agreement) be given by the Agent.
88
20.3 No implied waivers, remedies cumulative
No failure or delay on the part of the Bank Finance Parties or any of
them to exercise any power, right or remedy under the Bank Finance
Documents shall operate as a waiver thereof, nor shall any single or
partial exercise by the Bank Finance Parties or any of them of any
power, right or remedy preclude any other or further exercise thereof
or the exercise of any other power, right or remedy. The remedies
provided in the Bank Finance Documents are cumulative and are not
exclusive of any remedies provided by law.
20.4 Counterparts
This Agreement may be executed in any number of counterparts and by
the different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts
shall together constitute one and the same instrument.
20.5 Third Party Rights
No term of this Agreement is enforceable under the Contracts (Rights
of Third Parties) ▇▇▇ ▇▇▇▇ by a person who is not a party to this
Agreement.
21 Governing law and jurisdiction
21.1 Law
This Agreement shall be governed by English law.
21.2 Submission to jurisdiction
The parties to this Agreement agree for the benefit of the Finance
Parties that:
21.2.1 if any party has any claim against any other arising out of or in
connection with this Agreement such claim shall (subject to clause
21.2.3) be referred to the High Court of Justice in England, to the
jurisdiction of which each of the parties irrevocably submits;
21.2.2 the jurisdiction of the High Court of Justice in England over any such
claim against any Bank Finance Party shall be an exclusive
jurisdiction and no courts outside England shall have jurisdiction to
hear or determine any such claim; and
21.2.3 nothing in this clause 21.2 shall limit the right of any Bank Finance
Party to refer any such claim against any Obligor to any other court
of competent jurisdiction outside England, to the jurisdiction of
which each Obligor hereby irrevocably agrees to submit, nor shall the
taking of proceedings by any Bank Finance Party before the courts in
one or more jurisdictions preclude the taking of proceedings in any
other jurisdiction whether concurrently or not.
21.3 Agent for service of process
Each Obligor which is not incorporated in England and Wales
irrevocably and unconditionally designates, appoints and empowers the
Parent to receive for it and on its behalf service of process issued
out of the High Court of Justice in England in relation to any claim
arising out of or in connection with this Agreement.
21.4 Waiver of jury trial
Each Obligor hereby waives any and all right to trial by jury in any
legal proceedings anywhere arising out of or relating to this
Agreement or the transactions contemplated hereby.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
89
Schedule 1
Part A - Original Borrowers
Name of Borrower Registered Number Registered office/address
(if any)
1 Cordiant Communications 1320869 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
2 ▇▇▇▇▇ UK Limited 913184 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
3 Cordiant US Holdings Inc. ▇▇-▇▇▇▇▇▇▇ Corporation Trust Centre
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
4 ▇▇▇▇▇ Deutschland HRB 8608 ▇▇▇▇▇▇▇ Landstrasse
Holding GmbH 287-289
60314 Frankfurt am Main
Germany
90
Part B - Original Guarantors
Name of Guarantor Registered Number Registered office/address
(if any)
1 Cordiant Communications 1320869 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
2 ▇▇▇▇▇ Europe Limited 689584 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
3 ▇▇▇▇▇ UK Limited 913184 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
4 Atlas Advertising Limited 964286 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
5 The Decision Shop Llmited 615225 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
6 ICM International Limited 1802173 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
7 Cordiant US Holdings Inc. ▇▇-▇▇▇▇▇▇▇ Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Delaware
8 ▇▇▇▇▇ Advertising USA Inc. 132993871 ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
9 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Public ▇▇-▇▇▇▇▇▇▇ CT Corporation System
Relations, Inc ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
10 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Advertising ▇▇-▇▇▇▇▇▇▇ CT Corporation System
Inc ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
11 ▇▇▇▇▇ Worldwide 51 0306788 Corporation Trust Center
(Delaware), Inc ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
12 CCG.XM Inc ▇▇-▇▇▇▇▇▇▇ Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
13 Healthworld Corporation ▇▇-▇▇▇▇▇▇▇ Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
91
Name of Guarantor Registered Number Registered office/address
(if any)
14 ▇▇▇▇▇ Healthworld, Inc ▇▇-▇▇▇▇▇▇▇ c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
CCG Worldwide, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
15 ▇▇▇▇ Healthworld Inc. ▇▇-▇▇▇▇▇▇▇ Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
16 Lighthouse Global Network ▇▇-▇▇▇▇▇▇▇ Corporation Trust Center
Inc ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
17 Fitch Inc. ▇▇-▇▇▇▇▇▇▇ CT Corporation System
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
18 ▇▇▇▇▇▇-▇▇▇▇▇ Associates, 133128710 c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Inc. CCG Worldwide, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
19 ▇▇▇▇▇ Deutschland Holding HRB 8608 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇-▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
20 Cordiant Communications ACN: 003 Level 15,
Group Australia Pty. 203 450 ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
92
Part C - Original Overdraft Borrowers
Name of Overdraft Registered Number Registered office/address
Borrower (if any)
1 Atlas Advertising Limited 964286 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
2 ▇▇▇▇▇ Overseas Holdings 2217108 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
3 ▇▇▇▇▇ Europe Limited 689584 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
4 ▇▇▇▇▇ UK Limited 913184 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
5 Cordiant Communications 1320869 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
6 Cordiant Group Limited 63031 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
7 Cordiant Property Holdings 2263916 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
8 ICM International Limited 1802173 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
9 Swot Pius Limited 1929347 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
10 The Decision Shop Limited 615225 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
11 XMSS Limited 2463385 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
12 Healthworld Holdings 3458882 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
13 ▇▇▇▇▇▇ Marketing Group 3113109 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
14 Headcount Worldwide 1425412 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
93
Name of Overdraft Registered Number Registered office/address
Borrower (if any)
15 Colwood Healthworld 2213846 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
16 ▇▇▇▇▇ Healthworld Limited 3961667 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
17 ▇▇▇▇▇▇ Marketing Limited 1385429 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
18 Financial Dynamics Holdings 1656428 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
19 Lighthouse Holdings (UK) 3719632 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
20 Fitch Design Consultants 670130 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
21 Financial Dynamics Limited 670130 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
22 Connect Six Limited 2191533 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
23 Connect Five Limited 1928295 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
24 Clarion Communications 2517824 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
25 PSD Associates Limited 2431038 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
26 ▇▇▇▇▇▇ & Friends London 3398022 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
27 N.A.S.A.2.0 London 3942853 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
28 CCG.XM 4023322 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
29 CCGXM Holdings Limited 3961670 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
30 Bamber Forsyth Limited 2097924 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
31 Corporate and Financial 2693509 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
32 Bulletin International 2581681 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
94
Name of Overdraft Registered Number Registered office/address
Borrower (if any)
33 Bulletin International 3778367 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(▇▇) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
34 PCI Live Design Limited 3053382 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
35 Business Communications 4048310 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
Limited
36 Fitch Worldwide Limited 4135498 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
37 Cordiant (US) Holdings 4242432 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
38 Fitch International 2699605 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
39 Fitch Limited 1388429 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
40 Healthworld UK Holdings 4135498 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1012296 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
42 Deckchair Studios Limited 644752 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
43 ▇▇▇ ▇▇▇▇▇ Holdings Limited 553986 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
44 C&FD (Holdings) Limited 3560931 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
45 Cordiant Overseas Holdings 4135469 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
46 Propose Two Limited 3649589 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
47 Secure Two Limited 3646997 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
48 Connect One Limited 1929925 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
49 Sonic Sun Limited 4350720 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
50 CCG.XM (UK) Limited 3942085 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
95
Part D - Additional Guarantors
following the Lighthouse Acquisition
[deleted]
96
Schedule 2
The Banks and their Commitments
Name of Bank Address, telephone and fax Commitment
number (pounds)
HSBC Bank plc MedialTelecoms Group 15,976,792.53
▇▇-▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
The Bank of New York ▇▇▇▇▇ ▇▇ 15,976,792.53
One Canada Square
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
ABN AMRO Bank N.V., 250 Bishopsgate 10,131,624.52
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Allied Irish Banks, plc Corporate Banking Britain 8,443,020.17
St Helen's
▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Bank of Scotland ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇,▇▇▇.▇▇▇.▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Banque Worms Tour Voltaire 5,065,812.27
▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇ ▇▇ Defense
FRANCE
Tel: ▇▇ ▇▇ ▇ ▇▇ ▇▇ ▇▇ 13
Fax: ▇▇ ▇▇ ▇ ▇▇ ▇▇ ▇▇ 67
Citibank, N.A. Media & Communications 10,131,624.52
Group
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ OF
97
Name of Bank Address, telephone and fax Commitment
number (pounds)
AMERICA
Tel: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fleet National Bank ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇,▇▇▇,▇▇▇,.▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ OED
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Mizuho Corporate Bank, River Plate House 12,339,799.23
Ltd ▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Lloyds TSB Bank plc Credit Services 13,249,047.45
▇▇▇ ▇▇▇▇▇
▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
The Royal Bank of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 13,249,047.45
Scotland plc ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Scotiabank Europe plc Scotia House 13,249,047.45
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Westdeutsche Landesbank Woolgate Exchange 11,560,443.50
Girozentrale ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
TOTAL 155,871,146.52
98
Schedule 3
Part A - Form of Drawdown Notice
To: HSBC lnvestment Bank plc
City ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: Syndicated Finance Agency
OR
The Bank of New York, as Swingline Bank plc Copy: HSBC Investment Bank
▇/▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
One Wall Street - 18 North ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______ 200_
Attention: Agency Department
Facilities of up to (pound)155,871,146.52 Agreement dated o 2000
We refer to the above Agreement and hereby give you notice that we [wish to draw
down a [Revolving Credit Facility Advance]/[Swingline Advance of [pounds]o [in
[currency]] on o for [specify purpose] and select a Term of [o days]/[o]
months]. The funds should be credited to [name and number of account] with
[details of bank in [New York City] [London] [principal financial centre for
relevant Optional Currency].
We confirm that:
(i) no event or circumstance has occurred and is continuing unremedied and
unwaived which constitutes a Default; and
(ii) the representations and warranties contained in clause 11.1
(Representations and Warranties) of the Agreement other than the
excluded representations and warranties are true and correct at the
date of this notice as if made with respect to the facts and
circumstances existing at the date of this notice [; and]
*[(iii) we are not aware (after due inquiry) of any matter or event which is
reasonably likely to result in a breach of clause 13.1 (Financial
Covenants) or an Event of Default under any of clauses 14.1.1
(Non-payment) or 14.1.5 (Cross default) to 14.1.15 (Analogous
proceedings) inclusive either immediately on the date of this Drawdown
Notice or within the period ending 12 months after the date of the
drawing.]
Words and expressions defined in the Agreement shall have the same meanings
where used in this notice.
For and on behalf of
---------------------------------
[Name of Borrower]
*For and on behalf of
---------------------------------
Cordiant Communications Group plc
[*:Note - include in the Drawdown Notice relating to a Revolving Credit Advance
which would, if drawn, cause the aggregate Sterling Amount of the Revolving
Credit Advances outstanding after such drawing to exceed the aggregate Sterling
Amount of the Revolving Credit Advances outstanding under the Revolving Credit
Facility prior to that drawing (after taking account of any repayment made on or
prior to the date of such drawlng).]
100
Part B - Form of L/C Application
To The Bank of New York, as Swingline Bank,
▇/▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ -▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇
Attention: Agency Department
Copy:HSBC Investment Bank plc
City ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: Syndicated Finance Agency
o 200 o
Facilities of up to (pound)155,871,146.52 Agreement dated o 2000
We refer to the above Agreement and hereby request that you issue a Swingline
Letter of Credit with an L/C Issue Date of [ ] for a maximum amount of [ ] in
respect of [ ].
We confirm that:
(i) no event or circumstance has occurred and is continuing unremedied and
unwaived which constitutes a Default; and
(ii) the representations and warranties contained in clause 11.1
(Representations and Warranties) of the Agreement other than the excluded
representations and warranties are true and correct at the date of this
notice as if made with respect to the facts and circumstances existing at
the date of this notice.
Words and expressions defined in the Agreement shall have the same meanings
where used in this notice.
For and on behalf of
-------------------------
Cordiant US Holdings Inc.
101
Schedule 4
Part A - Documents and evidence required as conditions
precedent to the delivery of the first Drawdown Notice
in respect of the Facilities
[deleted]
102
Part B - To be delivered prior to the delivery of the
first Drawdown Notice in respect of an Advance to be
used to refinance the Existing Lighthouse Facilities
or to pay costs and expenses incurred in connection
with the Lighthouse Acquisition
[deleted]
103
Part C - Documents and evidence to be delivered by each additional Guarantor
[deleted]
104
Part D - Documents and evidence to be delivered by an Additional
Borrower or Additional Overdraft Borrower
(a) A copy, certified as true, complete and up to date by the company secretary
or equivalent officer of the relevant Subsidiary of the Certificate of
Incorporation and the Memorandum and Articles of Association (or equivalent
constitutional documents) of the relevant Subsidiary and, in the case of
any such Subsidiary incorporated in the United States of America, all
documents relating to the existence and good standing of such Subsidiary.
(b) A copy, certified as a true copy by the company secretary (or equivalent)
of the relevant Subsidiary, of resolutions of the Board of Directors (or,
in the case of any company incorporated an Germany, any other competent
authority) of that Subsidiary evidencing approval of the Borrower Accession
Agreement or Overdraft Borrower Accession Agreement and any relevant
documents to be provided pursuant to paragraphs (m) and (n) below and
authorising its appropriate officers to execute and deliver such Borrower
Accession Agreement or Overdraft Borrower Accession Agreement and any
relevant documents to be provided pursuant to paragraphs (m) and (n) below
and to give all notices (including Drawdown Notices) in the case of an
Additional Borrower and take all other action required by the relevant
Subsidiary under the Bank Finance Documents to which it becomes a party.
(c) A copy, certified as a true copy by the company secretary or equivalent
officer of the relevant Subsidiary of all consents, authorisations,
licences and approvals required by the relevant Subsidiary to authorise, or
required by the relevant Subsidiary in connection with, the execution,
delivery, validity, enforceability and admissibility in evidence of the
Borrower Accession Agreement or Overdraft Borrower Accession Agreement and
any relevant documents to be provided pursuant to paragraphs (m) and (n)
below and the performance by the relevant Subsidiary of its obligations
under the Bank Finance Documents to which it becomes a party.
(d) Specimen signatures, authenticated by the company secretary or equivalent
officer of the relevant Subsidiary of the persons authorised in the
resolutions of the Board of Directors or equivalent, referred to in
paragraph (b), above.
(e) An opinion of legal advisers to the Banks in the country of incorporation
of the relevant Subsidiary, dated not more than fifteen Banking Days prior
to the date of the Borrower Accession Agreement or Overdraft Borrower
Accession Agreement.
(f) An opinion of ▇▇▇▇▇▇ ▇▇▇▇, dated not more than fifteen Banking Days prior
to the date of the Borrower Accession Agreement or Overdraft Borrower
Accession Agreement.
(g) In the case of a Subsidiary not incorporated in England and Wales, a copy,
certified as a true copy by the company secretary or equivalent officer of
the relevant Subsidiary of a letter from the agent of the relevant
Subsidiary for receipt of service of process referred to in the Borrower
Accession Agreement or Overdraft Borrower Accession Agreement or any
relevant documents to be provided pursuant to paragraphs (m) and (n) below
accepting its appointment.
(h) A Borrower Accession Agreement or Overdraft Borrower Accession Agreement
duly executed by the Additional Borrower and (in the case of the Borrower
Accession Agreement or Overdraft Borrower Accession Agreement) the Parent.
(i) A certificate of a director of the Additional Borrower confirming that
utilisation of the Facilities in full or, in the case of an Additional
Overdraft Borrower, utilisation of the Overdraft Facility in full would not
cause any borrowing limit binding on it to be exceeded.
(j) A copy, certified as a true copy by the company secretary of the Parent of
resolutions of the Board of Directors of the Parent, evidencing approval of
the Parent (for itself and on behalf of the other Borrowers) to the
Subsidiary becoming an Additional Borrower or an Additional
105
Overdraft Borrower, as the case may be, by entering into a Borrower
Accession Agreement or Overdraft Borrower Accession Agreement.
(k) Excerpt from the commercial register of any relevant Subsidiary
incorporated in Germany dated not later than fifteen Banking Days prior to
the date of the Borrower Accession Agreement confirming the signatories are
authorised to act on behalf of the respective company.
(l) A written confirmation from each Guarantor that its Guarantee continues in
full force and effect notwithstanding the accession of the relevant
Additional Borrower or Additional Overdraft Borrower and guarantees the
borrowings of the relevant Additional Borrower or Additional Overdraft
Borrower.
(m) The documentation and evidence required to be provided as a condition to
the accession of an Additional Borrower or Additional Overdraft Borrower
under the terms of the Security Memorandum.
(n) Evidence satisfactory to the Agent that the relevant Subsidiary is a party
to, or has acceded to, the Intercreditor Agreement, the Common Security
Trust Deed and the relevant deed of crossguarantee and overdraft facility
letter in favour of the Overdraft Bank.
106
Part E - Form of Director's Certificate regarding
financial assistance
[deleted]
107
Schedule 5
Calculation of Additional Cost
1 The Additional Cost is an addition to the interest rate to compensate Banks
for the cost of compliance with (a) the requirements of the Bank of England
and/or the Financial Services Authority (or, in either case, any other
authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2 On the first day of each interest period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Bank, in accordance with the paragraphs
set out below. The Additional Cost will be calculated by the Agent as a
weighted average of the Banks' Additional Cost Rates (weighted in
proportion to the percentage participation of each Bank in the relevant
Advance) and will be expressed as a percentage rate per annum.
3 The Additional Cost Rate for any Bank lending from a Facility Office in a
Participating Member State will be the percentage notified by that Bank to
the Agent. This percentage will be certified by that Bank in its notice to
the Agent to be its reasonable determination of the cost (expressed as a
percentage of that Bank's participation in all Advances made from that
Facility Office) of complying with the minimum reserve requirements of the
European Central Bank in respect of loans made from that Facility Office.
4 The Additional Cost Rate for any Bank lending from a Facility Office in the
United Kingdom will be calculated by the Agent as follows:
in relation to a sterling Advance:
AB+C(B-D)+/E x O.01
------------------per cent. per annum
100-(A + C)
in relation to an Advance in any currency other than sterling:
E x 0.01
------- per cent. per annum.
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Bank is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the Margin and the
Additional Cost and, if the Advance is an unpaid sum, the additional
rate of interest specified in clause 5 (Interest for late payment))
payable for the relevant interest period on the Advance.
C is the percentage (if any) of Eligible Liabilities which that Bank is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to the
Agent on interest bearing Special Deposits.
108
E is designed to compensate Banks for amounts payable under the Fees
Rules and is calculated by the Agent as being the average of the rates
of charge supplied by the Reference Banks (or those of the Reference
Banks as supply a rate to the Agent) to the Agent pursuant to
paragraph 7 below and expressed in pounds per (pound)1,000,000.
5 For the purposes of this Schedule:
"Eligible Liabilities" and "Special Deposits" have the meanings given to
them from time to time under or pursuant to the Bank of England Act 1998 or
(as may be appropriate) by the Bank of England;
"Fees Rules" means the rules on supervision fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force from
time to time in respect of the payment of fees for the acceptance of
deposits;
"Fee Tariffs" means the fee tariffs specified in the Fees Rules under the
activity group A.1 Deposit acceptors (but ignoring any minimum fee or zero
rated fee required pursuant to the Fees Rules); and
"Tariff Base" has the meaning given to it, and will be calculated in
accordance with, the Fees Rules.
6 In application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula
as 5 and not as 0.05). A negative result obtained by subtracting D from B
shall be taken as zero. The resulting figures shall be rounded to four
decimal places.
7 Each Reference Bank shall supply to the Agent in writing, the rate of
charge payable by that Reference Bank to the Financial Services Authority
pursuant to the Fees Rules (calculated for this purpose by that Reference
Bank as being the average of the Fee Tariffs applicable to that Reference
Bank) and expressed in pounds per (pound)1,000,000 of the Tariff Base of
that Reference Bank.
Each Reference Bank shall promptly notify the Agent in writing of any
change to the information provided by it pursuant to this paragraph.
8 Each Bank shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but without
limitation, each Bank shall supply the following information in writing on
or prior to the date on which it becomes a Bank:
(i) its jurisdiction of incorporation and the jurisdiction of its Facility
Office; and
(ii) any other information that the Agent may reasonably require for such
purpose.
Each Bank shall promptly notify the Agent in writing of any change to the
information provided by it pursuant to this paragraph.
9 The percentages or rates of charge of each Bank and each Reference Bank for
the purpose of A, C and E above shall be determined by the Agent based upon
the information supplied to it pursuant to paragraphs 7 and 8 above and on
the assumption that, unless a Bank or Reference Bank notifies the Agent to
the contrary, each Bank's and Reference Bank's obligations in relation to
cash ratio deposits, Special Deposits and the Fees Rules are the same as
those of a typical bank from its jurisdiction of incorporation with a
Facility Office in the same jurisdiction as its Facility Office.
10 The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any Bank
and shall be entitled to assume that the information provided by any Bank
or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and
correct in all respects.
109
11 The Agent shall distribute the additional amounts received as a result of
the Additional Cost to the Banks on the basis of the Additional Cost Rate
for each Bank based on the information provided by each Bank and each
Reference Bank pursuant to paragraphs 3, 7 and 8 above.
12 Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Additional Cost, an Additional Cost Rate or any amount payable
to a Bank shall, in the absence of manifest error, be conclusive and
binding on all parties.
13 The Agent may from time to time, after consultation with the Company and
the Banks, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all parties.
110
Schedule 6
Form of Substitution Certificate
Part A (single transfers)
Note: Any new Bank must also sign the agreed form Bank Deed of
Accession set out in the Common Security Trust Deed]
NB: 1 Banks are advised not to employ Substitution Certificates or otherwise
to assign, novate or transfer interests in the Agreement without first
ensuring that the transaction complies with all applicable laws and
regulations, including the Financial Services ▇▇▇ ▇▇▇▇ and regulations
made thereunder.
2 It is expected that Banks will enter into separate arrangements
dealing with the monies to be paid to the Existing Bank by the
Substitute in consideration of the novation (e.g. principal, accrued
interest, fees and any mismatched funding adjustment). Unless the
Transfer Date is a rollover date, mismatches of parties' funding may
arise. This Certificate does not deal with these issues, nor does it
deal with any interim risk participation the Existing Bank may grant
to the Substitute pending the Transfer Date.
To: HSBC Investment Bank plc
City ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: Syndicated Agency
[Date]
Substitution Certificate
This Substitution Certificate relates to an Agreement (the "Agreement") dated 4
July 2000 between Cordiant Communications Group plc as the Parent (1), the
companies whose names, registered numbers and registered offices are set out in
schedule 1 thereto as Original Borrowers or Original Overdraft Borrowers (2),
The Bank of New York and HSBC Investment Bank plc as Arrangers (3), the banks
and financial institutions whose respective names and addresses are set out in
schedule 2 thereto as Banks (4) HSBC Investment Bank plc as Agent, Security
Trustee and Common Security Trustee (5), The Bank of New York as Swingline Bank
(6) and HSBC Bank plc as Overdraft Bank (7) (as from time to time amended,
varied, extended, restated or replaced) and the Security Trust Deed, the Common
Security Trust Deed and the Intercreditor Agreement defined and referred to
therein. Terms defined in the Agreement shall have the same meaning in this
Substitution Certificate.
1 [Name of Existing Bank] (the "Existing Bank") (a) confirms the accuracy of
the summary of its Commitment and Contribution set out in the schedule to
this Substitution Certificate; and (b) requests [Substitute Bank] (the
"Substitute") to accept by way of novation the portion of its Commitment
and Contribution specified in the schedule to this Substitution Certificate
by counter-signing and delivering this Substitution Certificate to the
Agent at its address for the service of notices specified in the Agreement.
111
2 The Substitute requests the Agent (on behalf of itself, the other Bank
Finance Parties, the Borrowers and all other parties to the Agreement and
the Security Trust Deed) to accept this Substitution Certificate as being
delivered to the Agent pursuant to and for the purposes of clause 18.3 [and
clause 18.15] of the Agreement and clause 10.3 of the Security Trust Deed
so as to take effect in accordance with the terms on [date of transfer],
(being not earlier then [5] Banking Days after date of delivery of the
Certificate to the Agent] (the "Transfer Date") or on such date as may be
determined in accordance with the terms thereof.
3 The Agent (on behalf of itself, the other Bank Finance Parties, the
Borrowers and all other parties to the Agreement and the Security Trust
Deed) confirms the novation effected by this Substitution Certificate
pursuant to and for the purposes of clause 18.3 [and clause 18.15] of the
Agreement and clause 10.3 of the Security Trust Deed so as to take effect
in accordance with the respective terms thereof.
4 The Substitute confirms:
(a) that it has received copies of the Agreement and all other
documentation and information required by it in connection with the
transactions contemplated by this Substitution Certificate;
(b) that it has not relied upon any statement, opinion, forecast or other
representation (including, without limitation, anything contained in
the Information Package or any Information Memorandum) or warranty
made by the Existing Bank, the Arrangers, the Security Trustee, the
Common Security Trustee or the Agent to induce it to enter into this
Substitution Certificate;
(c) that it has made and will continue to make, without reliance on the
Existing Bank or any other Bank Finance Party, and based on such
documents as it considers appropriate, its own appraisal of the
creditworthiness of each Borrower and the Group and its own
independent investigation of the financial condition, prospects and
affairs of each Borrower and the Group in connection with the making
and continuation of the Facilities under the Agreement;
(d) that neither the Existing Bank nor any other Bank Finance Party shall
at any time be deemed to have had or have a duty or responsibility,
either historically, initially or on a continuing basis, to provide
the Substitute with any credit or other information with respect to
any Borrower or any other member of the Group whether coming into its
possession before the making of any Drawing or at any time or times
thereafter, other than (in the case of the Agent) as provided in
clauses 19.3.1 and 19.5.1 of the Agreement;
(e) that it has made and will continue to make its own assessment of the
legality, validity, enforceability and sufficiency of the Bank Finance
Documents and this Substitution Certificate and has not relied and
will not rely on the Existing Bank, the Arrangers, the Security
Trustee, the Common Security Trustee or the Agent or any statements
made by any of them in that respect;
(f) that, accordingly, none of the Existing Bank, the Arrangers, the
Security Trustee, the Common Security Trustee and the Agent shall make
any representations or warranties in respect of, or shall have any
liability or responsibility to the Substitute in respect of any of the
foregoing matters or any other matter referred to in clause 19.7 of
the Agreement; and
(g) that [it is [is not] a Qualifying Bank.
5 Execution of this Substitution Certificate by the Substitute constitutes
its representation to the Existing Bank and all other parties to the
Agreement and the Security Trust Deed that it has power to become party to
the Agreement and the Security Trust Deed as a Bank on the terms herein and
therein set out and has taken all necessary steps to authorise execution
and delivery of this Substitution Certificate.
112
6 The Substitute hereby undertakes to the Existing Bank, the other Bank
Finance Parties, the Borrowers and the other Parties to the Agreement and
the Security Trust Deed that it will perform in accordance with their terms
all those obligations which by the respective terms of the Agreement and
the Security Trust Deed will be assumed by it after acceptance of this
Substitution Certificate by the Agent.
7 Without limiting the above paragraphs, nothing in this Substitution
Certificate obliges the Existing Bank to:
(a) accept any re-transfer from the Substitute of any of the rights,
benefits and/or obligations hereby transferred; or
(b) support any losses incurred by the Substitute by reason of any
non-performance by any Borrower or any other party to the Bank Finance
Documents or any document relating thereto of any of its obligations
under the same.
8 This Substitution Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law. Clauses 21.2 and 21.3 of the Agreement inclusive are incorporated
herein by reference.
9 This Substitution Certificate may be executed in any number of counterparts
and by different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts shall
together constitute one and the same instrument.
Note: This Substitution Certificate is not a security, bond, note,
debenture, investment or similar instrument.
AS WITNESS the hands of the authorised signatories of the parties hereto on the
date appearing below.
113
The Schedule
Amount of Contribution Portion Novated
(pound) (pound)
Amount of Commitment Portion Novated
(pound) (pound)
Administrative Details of Substitute
Lending office:
Account for payments:
Telephone:
Telefax:
Attention:
[Existing Bank] [Subsitute]
By: By:
Date Date
The Agent
By:
on its own behalf and on behalf of the other Bank Finance Parties, the Obligors
and all other parties to the Agreement and the Security Trust Deed.
Date:
114
Part B (global form)
Note: Any new Bank must also sign the agreed form Bank Deed of
Accession set out In the Common Security Trust Deed]
NB 1. Banks are advised not to employ Substitution Certificates or otherwise
to assign, novate or transfer interests in the Agreement without first
ensuring that the transaction complies with all applicable laws and
regulations, including the Financial Services ▇▇▇ ▇▇▇▇ and regulations
made thereunder.
2. It is expected that Banks will enter into separate arrangements
dealing with the monies to be paid to the Existing Banks by the
Substitutes in consideration of the novatlon (e.g. principal, accrued
interest, fees and any mismatched funding adjustment). Unless the
Transfer Date is a rollover date, mismatches of parties' funding may
arise. This Certificate does not deal with these issues, nor does it
deal with any interim risk participation the Existing Banks may grant
to the Substitutes pending the Transfer Date.
To: HSBC Investment Bank plc
City ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: Syndicated Finance Agency
[Date]
Substitution Certificate
------------------------
This Substitution Certificate relates to an Agreement (the "Agreement") dated 4
July 2000 between Cordiant Communications Group plc as the Parent (1), the
companies whose names, registered numbers and registered offices are set out in
schedule 1 thereto as Original Borrowers or Original Overdraft Borrowers (2),
The Bank of New York and HSBC Investment Bank plc as Arrangers (3), the banks
and financial institutions whose respective names and addresses are set out in
schedule 1 thereto as Banks (4), HSBC Investment Bank plc as Agent, Security
Trustee and Common Security Trustee (5), The Bank of New York as Swingline Bank
(6) and HSBC Bank plc as Overdraft Bank (7) (as from time to time amended,
varied, extended, restated or replaced) and the Security Trust Deed, the Common
Security Trust Deed and lntercreditor Agreement defined and referred to therein.
Terms defined in the Agreement shall have the same meaning in this Substitution
Certificate.
1 Each of the banks or financial institutions set out as Existing Banks in
part A of the schedule below (the "Existing Banks") (a) confirms the
accuracy of the summary of its participation in the Agreement set out in
the schedule and (b) requests each of the banks set out as Substitute Banks
in part C of the schedule (the "Substitutes") to accept by way of novation
the portion of such participation specified (or calculated as specified) in
the schedule by counter-signing and delivering this Substitution
Certificate to the Agent at its address for the service of notices
specified in the Agreement.
2 Each of the Substitutes hereby requests the Agent (on behalf of itself, the
other Bank Finance Parties, the Obligors and all other parties to the
Agreement and the Security Trust Deed) to accept this Substitution
Certificate as being delivered to the Agent pursuant to and for the
purposes of clause 18.3 [and clause 18.15] of the Agreement and clause 10.3
of the Security Trust Deed so as to take effect in accordance with the
terms thereof on [date of transfer] (the "Transfer Date") or on such later
date as may be determined in accordance with the terms thereof.
3 The Agent (on behalf of itself, the other Bank Finance Parties, the
Borrowers and all other parties to the Agreement and the Security Trust
Deed) confirms each of the novations effected by this Substitution
Certificate pursuant to and for the purposes of clause 18.3 [and clause
115
18.15] of the Agreement and clause 10.3 of the Security Trust Deed so as to
take effect in accordance with the respective terms thereof.
4 Each of the Substitutes confirms:
(a) that it has received copies of the Agreement and all other
documentation and information required by it in connection with the
transactions contemplated by this Substitution Certificate;
(b) that it has not relied upon any statement, opinion, forecast or other
representation (including, without limitation, anything contained in
the Information Package or any Information Memorandum) or warranty
made by the Existing Banks, the Arrangers, the Security Trustee, the
Common Security Trustee or the Agent to induce it to enter into this
Substitution Certificate;
(c) that it has made and will continue to make, without reliance on the
Existing Banks or any other Bank Finance Party, and based on such
documents as it considers appropriate, its own appraisal of the
creditworthiness of each Borrower and the Group and its own
independent investigation of the financial condition, prospects and
affairs of each Borrower and the Group in connection with the making
and continuation of the Facilities under the Agreement;
(d) that neither the Existing Banks nor any other Bank Finance Party shall
at any time be deemed to have had or have a duty or responsibility,
either historically, initially or on a continuing basis, to provide
the Substitutes with any credit or other information with respect to
any Borrower or any other member of the Group whether coming into its
possession before the making of any Drawing or at any time or times
thereafter, other than (in the case of the Agent) as provided in
clauses 19.3.1 and 19.5.1 of the Agreement;
(e) that it has made and will continue to make its own assessment of the
legality, validity. enforceability and sufficiency of the Bank Finance
Documents and this Substitution Certificate and has not relied and
will not rely on the Existing Banks, the Arrangers, the Security
Trustee, the Common Security Trustee or the Agent or any statements
made by any of them in that respect;
(f) that, accordingly, none of the Existing Banks, the Arrangers, the
Security Trustee, the Common Security Trustee and the Agent shall make
any representations or warranties in respect of, or shall have any
liability or responsibility to the Substitutes in respect of, any of
the foregoing matters or any other matter referred to in clause 19.7
of the Agreement;
(g) that [it is [is not] a Qualifying Bank.
5 Execution of this Substitution Certificate by each of the Substitutes
constitutes its representation to each of the Existing Banks and all other
parties to the Agreement and the Security Trust Deed that it has power to
become party to the Agreement and the Security Trust Deed as a Bank on the
terms herein and therein set out and has taken all necessary steps to
authorise execution and delivery of this Substitution Certificate.
6 Each of the Substitutes hereby undertakes to the Existing Banks, the Bank
Finance Parties, the Borrowers and each of the other parties to the
Agreement and the Security Trust Deed that it will perform in accordance
with its terms all those obligations which by the terms of the Agreement
and the Security Trust Deed will be assumed by it after acceptance of this
Substitution Certificate by the Agent.
7 Without limiting the above paragraphs, nothing in this Substitution
Certificate obliges any of the Existing Banks to:
(a) accept any re-transfer from any Substitute of any of the rights,
benefits and/or obligations hereby transferred; or
116
(b) support any losses incurred by any Substitute by reason of any
non-performance by any Obliger or any other party to the Bank Finance
Documents or any document relating thereto of any of its obligations
under the same.
8 Each Substitute (and the Existing Banks in respect of the transfers to such
Substitute) agrees to be bound by this Substitution Certificate
notwithstanding that any other Substitute intended to execute this
Substitution Certificate may not do so or may not be effectually bound.
9 This Substitution Certificate may be executed in any number of counterparts
and by different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts shall
together constitute erie and the same instrument.
10 This Substitution Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law. Clauses 21.2 and 21.3 of the Agreement inclusive are incorporated
herein by reference.
Note: This Substitution Certificate is not a security, bond, note,
debenture, investment or similar instrument
AS WITNESS the hands of the authorised signatories of the parties hereto on the
date appearing below.
117
The Schedule
------------
Part A
Existing Banks' Commitments, Contributions being
each of their participations in the
Agreement as at the date of this
Substitution Certificate
[Set out each Existing Bank's participation including Commitments and
Contributions]
Part B
Portion Transferred
[Set out the portion of each Existing Bank's Commitments and Contributions
transferred]
[set out details or method of calculation]
Part C
[Set out names of Substitute Banks and the aggregate amounts of the Commitments
and Contributions being transferred to them]
[Insert execution particulars and each Substitute's administration details]
[Each of the Existing Banks] [Each of the Substitutes]
By: By:
---------------------------- ---------------------------------
Date: Date:
The Agent
By:
----------------------------
on its own behalf
and on behalf of the other Bank Finance Parties, the Borrowers and all other
parties to the Agreement and the Security Trust Deed.
118
Schedule 7
Permitted Encumbrances
China ▇▇▇▇▇ China HKD 835,000 Cash collateral to secure rental agreement
--------------------------------------------------------------------------------------------------------------------
France ▇▇▇▇▇ France FRF 1,073,000 Cash collateral to secure rental guarantee
--------------------------------------------------------------------------------------------------------------------
Greece ▇▇▇▇▇ Hellas GRD 50,000,000 Charge on accounts receivable re Xios bank
facility
--------------------------------------------------------------------------------------------------------------------
Greece ▇▇▇▇▇ Hellas GRD 75,000,000 Post dated bills re guarantee facility
provided by Xios Bank (renamed Piraeus)
--------------------------------------------------------------------------------------------------------------------
India ▇▇▇▇▇ India Ltd INR 25,000,000 Hypothecation of book debts and equitable
mortgage of properties for bank facilities
granted by both HSBC and ▇▇▇▇▇▇▇▇▇ Bank
(was 75m INR)
--------------------------------------------------------------------------------------------------------------------
Netherlands Cordiant Finance BV NLG 18,463 Cash collateral to secure rental guarantee
--------------------------------------------------------------------------------------------------------------------
Sweden ▇▇▇▇▇ Sweden SEK 4,150,000 Charge on assets re Provinsbanken/Osgota
Enskilda Banken bank and guarantee
facility
--------------------------------------------------------------------------------------------------------------------
Taiwan ▇▇▇▇▇ Taiwan TWD 15,000,000 Cash collateral for media guarantee
facility
--------------------------------------------------------------------------------------------------------------------
UK CCG plc EUR 165,000 Escrow account held with Bankinter for
deferred consideration re minority
purchase of Grupo ▇▇▇▇▇ Spain (originally
60m ESP)
--------------------------------------------------------------------------------------------------------------------
Australia Marketforce Ltd AUD 1,200,000 Secured by Mortgage debenture
--------------------------------------------------------------------------------------------------------------------
Brazil Newcomm BRL 4,000,000 Charge over receivables
--------------------------------------------------------------------------------------------------------------------
Czech Intercom CZK 4,000,000 Charge over receivables
Republic
--------------------------------------------------------------------------------------------------------------------
Norway NOK 12,500,000 Charge over receivables for the provision
of an overdraft facility and rental
guarantees
--------------------------------------------------------------------------------------------------------------------
Thailand ▇▇▇▇▇ Thailand THB 4,250,000 Charge over assets for the provision of a
loan facility
--------------------------------------------------------------------------------------------------------------------
119
Schedule 8
Part A
Borrower Accession Agreement
THIS BORROWER ACCESSION AGREEMENT is dated [ ] and made BEIWEEN:
(1) o (No. o) whose registered office is at o (the "Additional Borrower");
(2) CORDIANT COMMUNICATIONS GROUP PLC (No. 1320869) whose registered office is
at ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ (the "Parent"); and
(3) HSBC INVESTMENT BANK PLC of City Place House, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ in its capacity as Agent under the Agreement referred to below on
behalf of itself the and the other Finance Parties (the "Agent").
WHEREAS:
(A) The Additional Borrower is a Subsidiary of the Parent.
(B) By an agreement dated 4 July 2000 and made between the Parent (1), the
companies whose names and, where applicable, registered offices and
registered numbers are set out in parts A or C of schedule 1 thereto (2),
the Arrangers (3), the banks and financial institutions whose names and
addresses are set out in schedule 2 thereto (4), the Agent, the Security
Trustee and the Common Security Trustee (5), the Swingline Bank (6) and the
Overdraft Bank (7) (as from time to time amended, varied, extended,
restated or replaced, the "Agreement"), the Banks agreed to make available
to the Borrowers credit facilities.
(C) The Parent has undertaken to procure that an agreement supplemental to the
Agreement shall be executed and delivered by any Subsidiary of the Parent
which the Parent intends should become an Additional Borrower under the
Agreement.
NOW THIS BORROWER ACCESSION AGREEMENT WITNESSES as follows:
1. Agreement definitions
Unless the context otherwise requires or unless otherwise defined in this
Borrower Accession Agreement, words and expressions defined in the
Agreement shall have the same meaning when used in this Borrower Accession
Agreement or the Recitals hereto. Clauses 1.3 and 1.4 of the Agreement
shall apply to this Borrower Accession Agreement, mutatis mutandis, as if
expressly set out herein.
2. Accession to the Agreement
With effect from the date of this Borrower Accession Agreement, the
Additional Borrower shall become a party to the Agreement and a Borrower
thereunder as if named therein in part A of Schedule 10 thereto and with
effect from such date shall assume obligations towards and rights against
the other Borrowers, the Agent, the Arranger, the Funders, the Common
Security Trustee and the Security Trustee as if so named therein.
120
3. Continuance of the Agreement
Notwithstanding this Borrower Accession Agreement, the provisions of the
Agreement shall continue in full force and effect and, with effect from the
date of this Borrower Accession Agreement, the Agreement shall be read and
construed as one instrument as if references in the Agreement to "this
Agreement" were to the Agreement and this Borrower Accession Agreement
taken together.
4. Consent
The Parent (on behalf of itself and, the other Borrowers) and the Agent (on
behalf of itself and the other Bank Finance Parties) consent to the
Additional Borrower becoming a Borrower as set out in clauses 2 and 3.
5. Representations and warranties
The Additional Borrower represents and warrants to each of the Funders, the
Arrangers, the Security Trustee, the Common Security Trustee and the Agent
in the terms of clause 11.1 of the Agreement other than the excluded
representations and warranties as if references therein (i) to this
"Agreement" or to the "Security Documents" or to the "Bank Finance
Documents" were also to this Borrower Accession Agreement and (ii) to the
"Borrowers" or any "member of the Group" were to the Additional Borrower.
6. Law (and jurisdiction)
This Borrower Accession Agreement shall be governed by and construed in
accordance with English law.
[Jurisdiction clause and appointment of agent for service of process]
IN WITNESS whereof this Borrower Accession Agreement has been entered into the
day and year first above written
121
Part B - Overdraft Borrower Accession Agreement
THIS OVERDRAFT BORROWER ACCESSION AGREEMENT is dated [ ] and made BETWEEN:
(1) (No. o) whose registered office is at (the "Additional Overdraft
Borrower");
(2) CORDIANT COMMUNICATIONS GROUP PLC (No. 1320869) whose registered office is
at ▇▇▇/▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ (the "Parent"); and
(3) HSBC INVESTMENT BANK PLC of City Place House, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ in its capacity as Agent under the Agreement referred to below on
behalf of itself and the other Finance Parties (the "Agent").
WHEREAS:
(A) The Additional Overdraft Borrower is a Subsidiary of the Parent.
(B) By an agreement dated 4 July 2000 and made between the Parent (1), the
companies whose names and, where applicable, registered offices and
registered numbers are set out in parts A or C of schedule 1 thereto (2),
the Arrangers (3), the banks and financial institutions whose names and
addresses are set out in schedule 2 thereto (4), the Agent, the Security
Trustee and the Common Security Trustee (5), the Swingline Bank (6) and the
Overdraft Bank (7) (as from time to time amended, varied, extended,
restated or replaced, the "Agreement"), the Banks agreed to make available
to the Borrowers credit facilities.
(C) The Parent has undertaken to procure that an agreement supplemental to the
Agreement shall be executed and delivered by any Subsidiary of the Parent
which the Parent intends should become an Additional Overdraft Borrower
under the Agreement.
NOW THIS OVERDRAFT BORROWER ACCESSiON AGREEMENT WIThESSES as follows:
1. Agreement definitions
Unless the context otherwise requires or unless otherwise defined in this
Overdraft Borrower Accession Agreement, words and expressions defined in
the Agreement shall have the same meaning when used in this Overdraft
Borrower Accession Agreement or the Recitals hereto. Clauses 1.3 and 1.4 of
the Agreement shall apply to this Overdraft Borrower Accession Agreement,
mutatis mutandis, as if expressly set out herein.
2. Accession to the Agreement
With effect from the date of this Overdraft Borrower Accession Agreement,
the Additional Overdraft Borrower shall become a party to the Agreement and
an Overdraft Borrower thereunder as if named therein as an Overdraft
Borrower and with effect from such date shall assume obligations towards
and rights against the other Borrowers, the Agent, the Arranger, the
Funders, the Common Security Trustee and the Security Trustee as if so
named therein.
3. Continuance of the Agreement
Notwithstanding this Overdraft Borrower Accession Agreement, the provisions
of the Agreement shall continue in full force and effect and, with effect
from the date of this Overdraft Borrower Accession Agreement, the Agreement
shall be read and construed as one instrument as if references in the
Agreement to "this Agreement" were to the Agreement and this Overdraft
Borrower Accession Agreement taken together.
4. Consent
The Parent (on behalf of itself and, the other Borrowers) and the Agent (on
behalf of itself and the other Bank Finance Parties) consent to the
Additional Overdraft Borrower becoming an Overdraft Borrower as set out in
clauses 2 and 3.
5. Representations and warranties
The Additional Overdraft Borrower represents and warrants to each of the
Funders, the Arrangers, the Security Trustee, the Common Security Trustee
and the Agent in the terms of clause 11.1 of the Agreement other than the
excluded representations and warranties as if references therein (i) to
this "Agreement" or to the "Security Documents" or to the "Bank Finance
Documents" were also to this Overdraft Borrower Accession Agreement and
(ii) to the "Borrowers" or any "member of the Group" were to the Additional
Overdraft Borrower.
6. Law [and jurisdiction]
This Overdraft Borrower Accession Agreement shall be governed by and
construed in accordance with English law.
[Jurisdiction clause and appointment of agent for service of process].
IN WITNESS whereof this Overdraft Borrower Accession Agreement has been entered
into the day and year first above written.
123
Schedule 9
Permitted Guarantees
Austria ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ATS 600,000 Guarantee given by the company for rent
---------------------------------------------------------------------------------------------------------------------
Greece ▇▇▇▇▇ Hellas GRD 200,000,000 Indemnities provided in respect of a guarantee
issued under guarantee facility provided by
Eurormerchant bank
---------------------------------------------------------------------------------------------------------------------
Greece ▇▇▇▇▇ Hellas GRD 150,000,000 Indemnities provided in respect of a guarantee
issued under guarantee facility provided by Xios
bank, renamed Peraeus bank (secured 50% on post
dated bills)
---------------------------------------------------------------------------------------------------------------------
Greece ▇▇▇▇▇ Hellas GRD 250,000,000 Indemnities provided in respect of a guarantee
issued under guarantee facility provided by ABN
AMRO bank
---------------------------------------------------------------------------------------------------------------------
Hong Kong ▇▇▇▇▇ Hong Kong HKD 100,000 Guarantee provided to SCMP in respect of Zenith
Media
---------------------------------------------------------------------------------------------------------------------
Italy 141 Italia ITL 17,725,000 Indemnities provided in respect of a guarantee
provided by BCI to Zurigo Assurance
---------------------------------------------------------------------------------------------------------------------
Italy ▇▇▇▇▇ Italia ITL 131,450,000 Indemnities provided in respect of a guarantee
provided by BCI to Zurigo Assurance
---------------------------------------------------------------------------------------------------------------------
Italy Plan Design ITL 5,893,750 Guarantee in favour of Italian Finance Ministry
---------------------------------------------------------------------------------------------------------------------
Italy ▇▇▇ ▇▇▇▇▇ WW ITL 104,055,000 Guarantee in favour of Italian Finance Ministry
---------------------------------------------------------------------------------------------------------------------
Italy ▇▇▇▇▇ Italia ITL 5,000,000 Indemnities provided in respect of a guarantee
provided by BCI on behalf of Italian Police
department
---------------------------------------------------------------------------------------------------------------------
Malaysia ▇▇▇▇▇ Malaysia MYR 4,000,000 Indemnities provided in respect of a guarantee
issued under guarantee facility provided by HSBC
(1.5m MYR overdraft facility and 50% of 5m MYR
guarantee facility)
---------------------------------------------------------------------------------------------------------------------
Norway ▇▇▇▇▇ Gruppen AS NOK 5,500,000 Indemnities provided in respect of a Bank
guarantee provided by Sparbanken in favour of
landlords for office rents (originally 7.8m NOK)
---------------------------------------------------------------------------------------------------------------------
Spain Delvico ▇▇▇▇▇ ESP 100,000,000 Indemnities provided in respect of guarantees
issued under a guarantee facility provided by
Banco Santander
---------------------------------------------------------------------------------------------------------------------
UK CCG plc USD Lease Guarantee given to Landlord of ▇▇▇▇▇▇ Street
obligations (with Saatchi)
---------------------------------------------------------------------------------------------------------------------
UK CCG plc GBP Lease Guarantee given to Landlord of Berkeley Square
obligations (with Saatchi)
---------------------------------------------------------------------------------------------------------------------
UK CCG plc GBP Lease Guarantee given to Landlord of ▇▇▇▇▇ Road (with
obligations Saatchi)
---------------------------------------------------------------------------------------------------------------------
124
UK CCG plc GBP Variable Forward foreign exchange contracts
---------------------------------------------------------------------------------------------------------------------
UK CCG plc JPY 700,000,000 Guarantee given by plc in respect of ▇▇▇▇▇ Japan
---------------------------------------------------------------------------------------------------------------------
UK ▇▇▇▇▇ Overseas PTE 30,000,000 Guarantee provided by BOH for the Banca Totta
Holdings & Acores bank facility for ▇▇▇▇▇ Portugal JV
---------------------------------------------------------------------------------------------------------------------
UK CCG plc USD 2,000,000 Guarantee given to Chase Manhattan Bank
---------------------------------------------------------------------------------------------------------------------
UK CCG plc ZAR Run-off Guarantee given by plc to ▇▇ ▇▇▇▇▇▇▇ Company
liabilities (Prop) Ltd
---------------------------------------------------------------------------------------------------------------------
UK/US CCG plc USD Lease Guarantee given to Landlord of ▇▇▇▇▇ premises
obligations at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
USA ▇▇▇▇▇ US Holdings USD Guarantee given by Cordiant ▇▇▇▇▇▇▇
Inc WW to Niederhoffer, Cross & Zeckhauser
---------------------------------------------------------------------------------------------------------------------
USA ▇▇▇▇▇ US Holdings USD Guarantee given by Cordiant ▇▇▇▇▇▇▇
Inc WW to ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
USA ▇▇▇▇▇ US Holdings USD 10,000,000 Guarantee given by Cordiant ▇▇▇▇▇▇▇
Inc WW to KCIN re lease
---------------------------------------------------------------------------------------------------------------------
Argentina CCG plc ARP 610,000 Plc guarantee on behalf of Grandes Pinturerias
del Centro SA
---------------------------------------------------------------------------------------------------------------------
Argentina CCG plc ARP 500,000 Plc guarantee on behalf of La Nacion
---------------------------------------------------------------------------------------------------------------------
Argentina CCC plc ARP 1,500,000 Plc guarantee on behalf of Arte Radiotelevisivo
Argentino SA
---------------------------------------------------------------------------------------------------------------------
Argentina CCG plc ARP 1,500,000 Plc guarantee on behalf of Television Federal SA
---------------------------------------------------------------------------------------------------------------------
Argentina Zenith Media USD 1,500,000 Bank guarantee to ▇▇▇▇▇▇ ▇▇
Argentina
---------------------------------------------------------------------------------------------------------------------
Belgium LDV ▇▇▇▇▇ EUR 54,291 Bank guarantee given to landlord for rent
---------------------------------------------------------------------------------------------------------------------
Germany Sholz & Friends DEM 1,536,000 Bank guarantee given to landlord for rent
---------------------------------------------------------------------------------------------------------------------
Italy ▇▇▇▇▇ Italia ITL 44,500,000 Bank guarantees on behalf of Zurigo Assurance
(Ex Medical)
---------------------------------------------------------------------------------------------------------------------
Italy ▇▇▇▇▇ ltalia ITL 665,000,000 Bank guarantees on behalf of Min Del Lavoro
---------------------------------------------------------------------------------------------------------------------
Italy ▇▇▇▇▇ ltalia ITL 175,000,082 Bank guarantees on behalf of Min Dell'Interno
---------------------------------------------------------------------------------------------------------------------
Italy ▇▇▇▇▇ ltalia ITL 423,333,000 Bank guarantees on behalf of Regione Lombardia
---------------------------------------------------------------------------------------------------------------------
Italy ▇▇▇▇▇ ltalia ITL 250,000,000 Bank guarantees on behalf of Ministero Della
Salute
---------------------------------------------------------------------------------------------------------------------
Netherlands ▇▇▇▇▇ Not Just EUR 93,000 Bank guarantee given to landlord for rent
Film
▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ CCG plc NZD 5,000,000 Plc guarantee provided to TVNZ
---------------------------------------------------------------------------------------------------------------------
UK CCG plc GBP 735,712 Bank guarantee given to landlord of Holborn Gate
---------------------------------------------------------------------------------------------------------------------
UK CCG plc GBP 207,575 Bank guarantee given to landlord of Clerkenwell
Road
---------------------------------------------------------------------------------------------------------------------
126
Schedule 10
Borrower's Compliance Certificate
Form of Compliance Certificate
to be issued by an Authorised Officer
HSBC Investment Bank plc
City ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: Syndicated Finance Agency
[Date]
Dear Sirs
Cordiant Communications Group plc Loan Agreement dated o 2000 for Credit
Facilities of up to (pound)155,871,146.52 (the "Agreement")
We refer to the Agreement and deliver this Compliance Certificate in
respect of the Four Quarters ended o pursuant to clause 12.1.6(d) thereof.
Terms defined in the Agreement shall have the same meaning when used in
this Compliance Certificate. We attach a calculation of all the relevant
items referred to in paragraphs 1 to 5 below.
We confirm:
1 Consolidated EBITDA in respect of the 12 months ended on o was o.
2 Consolidated Net Interest Expenditure in respect of the 12 months ended on
o was o.
3 Consolidated Gross Borrowings (calculated on the basis of the average daily
outstandings during the two consecutive Quarters ending on o) was o.
4 Consolidated Net Worth o was o.
5 Capital Expenditure during the Financial Year ending o was o as at o.
Based on the above, we certify that, calculated on the basis set out in clause
13 of the Agreement:
(a) On o the ratio of Consolidated EBITDA to Consolidated Net Interest
Expenditure was o.
(b) On o the ratio of Consolidated Gross Borrowings to Consolidated EBITDA
was o.
Accordingly, we confirm that the Parent was in compliance with the undertakings
set out in clause 13 on o and in respect of the relevant periods ended on such
date.
We also attach a list of our Material Subsidiaries as at o , calculated on the
basis set out in the Agreement.
We confirm that no Default has occurred and is continuing which is unremedied
and unwaived [other than where full details have previously been provided to
you].
For and on behalf of
Cordiant Communications Group plc
-------------------
Finance Director
127
Schedule 11
Form of Guarantee to be given by new Guarantors
[deleted]
128
Schedule 12
Permitted Acquisitions
The acquisitions listed below provided that the total acquisition consideration
payable by the Group in respect of such acquisition (including for these
purposes any deferred consideration) does not exceed the maximum consideration
for such acquisition contained in the acquisition agreement as at the date of
this Agreement relating to the acquisition concerned.
▇▇▇▇▇▇▇▇▇ Group Inc/▇▇▇▇▇▇▇▇▇ Advertising Group Inc US Cash Earnout
---------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ Travel & Tourism Inc (Criterion) US Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Konoret AS Reklamebyra Norway Cash Put/call option
---------------------------------------------------------------------------------------------------------------------
Not Just Film BV Netherlands Cash Put call option
---------------------------------------------------------------------------------------------------------------------
Cronert & Co Sweden Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Corps 117 & LdV Belgium Cash Put/call option
---------------------------------------------------------------------------------------------------------------------
Interactive Edge Inc US Stock Earnout
---------------------------------------------------------------------------------------------------------------------
Mainostoimisto Sarrka Oy Finland Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Diamond Ad Ltd Korea Cash Earnout
---------------------------------------------------------------------------------------------------------------------
PSD Associates Ltd UK Stock Earnout
---------------------------------------------------------------------------------------------------------------------
Arcom Group Ltd UK Stock Earnout
---------------------------------------------------------------------------------------------------------------------
Camarote ZP S.L. Spain Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Impressionist International Communications Oy Finland Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Interprofil APS (Plan Design) Denmark Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Pack Design AB Sweden Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Bamber Forsyth Ltd UK Stock Earnout
---------------------------------------------------------------------------------------------------------------------
Donino White & Parners Inc US Stock Earnout
---------------------------------------------------------------------------------------------------------------------
CKMP Ltd UK Cash Earnout
---------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Advertising Ltd UK Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Intercom KG Germany Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Big Island International Pty Ltd Australia Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Ideaworks (Holdings) Pty Ltd Australia Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Marketforce Ltd Australia Cash Earnout & contractual
purchase
of shares
---------------------------------------------------------------------------------------------------------------------
Professional Public Relations Pty Ltd Australia Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Generator Communications Ltd New Zealand Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Newcomm ▇▇▇▇▇ Comunicacao Integrada Ltda Brazil Cash Earnout
---------------------------------------------------------------------------------------------------------------------
E.S.C. Comunicacion ▇▇▇▇▇, San ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.▇.▇. Spain Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Clarion Communications (PR) Ltd UK Cash Earnout
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Davidson Marketing Inc (Communicator US) US Cash Earnout
---------------------------------------------------------------------------------------------------------------------
The Terpin Group of Companies Inc US Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Sports Producers Hawaii Inc US Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Associates in Architecture & Design Inc US Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Propose Two Ltd/Secure Two Ltd (Communicator UK) UK Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Consultants in Pharmacuetical Advertising Espana S.L. Spain Cash Earnout
---------------------------------------------------------------------------------------------------------------------
H.F.T. Group France Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Microarts Corporation US Stock Earnout
---------------------------------------------------------------------------------------------------------------------
Bulletin International Ltd UK Stock Earnout
---------------------------------------------------------------------------------------------------------------------
Presentation Communications International Ltd/Ultimate UK Stock Earnout
Events Ltd
---------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ Public Relations Ltd Ireland Stock Earnout
---------------------------------------------------------------------------------------------------------------------
Diseno & Gestion S.L. Spain Cash Earnout & pull/
call option
---------------------------------------------------------------------------------------------------------------------
Testardo Public Relations Sp.o.o. Poland Cash Put/call option
---------------------------------------------------------------------------------------------------------------------
Harrisonhuman (Proprietary) Ltd South Africa Cash Earnout
---------------------------------------------------------------------------------------------------------------------
Schwab & ▇▇▇▇▇▇▇▇ Communications Inc Canada Cash Earnout
---------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ & Associati S.r.l./Naviter S.r.l. Italy Cash Earnout
---------------------------------------------------------------------------------------------------------------------
United Visions Entertainments AG Germany Cash Put/call option
---------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇. de Publicidad (▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) Argentina Cash Earnout
---------------------------------------------------------------------------------------------------------------------
International Business Information Inc Japan Stock Earnout
---------------------------------------------------------------------------------------------------------------------
141 France SA France Cash Put/call option
---------------------------------------------------------------------------------------------------------------------
Shelf Company subsidiary of ▇▇▇▇▇ Germany Germany Cash
Werbeagentur GmbH
---------------------------------------------------------------------------------------------------------------------
130
Schedule 13
Preference shares issued by (or to be issued) by Lighthouse and its
Subsidiaries as deferred consideration
Maximum Deferred
Consideration
(approximate Deferred End Date (on
Jurisdiction Entity or business acquired Date figure) Consideration or before
------------ --------------------------- ---- -------- ------------- ---------
USA ▇▇▇▇▇▇▇▇▇ 28.10.1999 $4,500,000 6% convertible 3 yrs or 5
preferred stock yrs from
of Lighthouse closing
USA Interiors for 29.11.1999 $4,000,000 6% convertible 3 yrs or 5
Architecture/Associates in preferred stock yrs from
Architecture and Design of Lighthouse closing
USA Avid Productions 06.01.2000 $2,000,000 6% convertible 31.12.2000
preferred stock and
of Lighthouse 31.12.2004
UK C&FD 06.11.2000 (pound)585,000 5850 redeemable 31.12.2004
preference
shares in
Lighthouse
Holdings UK
Limited - can be
exchanged for 6%
convertible
preferred stock
of Lighthouse
USA ▇▇▇▇▇▇-▇▇▇▇▇ 12.01.2000 $5,250,000 6% convertible 31.12.2002
preferred stock and 31.12.2002
of Lighthouse
USA Ideascope 07.02.2000 $ 3,500,000 6% convertible 3 yrs after
preferred stock closing
of Lighthouse
UK Clarion 10.03.2000 (pound)339,000 plus 9870 preference 31.12.2002
(pound)987,000 to be shares in
satisfied by Lighthouse
issue of 9870 Holdings UK
preference shares Limited - can be
exchanged into
6% convertible
preferred stock
of Lighthouse
USA Wang 02.03.2000 $100,000 6% convertible 31.12.2002
preferred stock
of Lighthouse
USA Fantastic Sports 04.03.1999 $1,675,000 plus 6% convertible 04.03.2004
interest preferred stock
of Lighthouse
USA ▇▇▇▇▇ ▇▇▇▇▇▇ 25.06.1999 $3,150,000 6% convertible 01.07.2004
plus interest preferred stock
and dividends of Lighthouse
USA Davidson 07.07.1999 $3,000,000 6% convertible 31.05.2003
preferred stock
of Lighthouse
131
Maximum Deferred
Consideration
(approximate Deferred End Date (on
Jurisdiction Entity or business acquired Date figure) Consideration or before
------------ --------------------------- ---- -------- ------------- ---------
UK Financial Dynamics 23.07.1999 (pound)11,200,000 6% convertible 31.12.2002
preferred stock
of Lighthouse
132
Schedule 14
Non-Bank Cash Pooling Arrangements
Cash Pooling Arrangements in Germany with Deutsche Bank AG and between ▇▇▇▇▇▇ &
Friends AG and its Subsidiaries existing at the Restructuring Date which are
incorporated in Germany.
133
THE PARENT
----------
SIGNED for and on behalf of )
CORDIANT COMMUNICATIONS )
GROUP PLC )
by: )
THE ORIGINAL BORROWERS
----------------------
SIGNED for and on behalf of )
CORDIANT COMMUNICATIONS )
GROUP PLC )
by: )
SIGNED for and on behalf of )
▇▇▇▇▇ UK LIMITED )
by: )
SIGNED for and on behalf of )
▇▇▇▇▇ US HOLDINGS INC. )
by: )
SIGNED for and on behalf of )
▇▇▇▇▇ DEUTSCHLAND )
HOLDINGS GMBH )
by: )
THE ORIGINAL OVERDRAFT BORROWERS
--------------------------------
SIGNED for and on behalf of )
ATLAS ADVERTISiNG LIMITED )
by: )
SIGNED for and on behalf of )
▇▇▇▇▇ EUROPE LIMITED )
by: )
SIGNED for and on behalf of )
▇▇▇▇▇ OVERSEAS HOLDINGS )
LIMITED by: )
SIGNED for and on behalf of )
▇▇▇▇▇ UK LIMITED )
by: )
SIGNED for and on behalf of )
CORDIANT COMMUNICATIONS )
GROUP PLC )
by: )
134
SIGNED for and on behalf of )
CORDIANT GROUP LIMITED )
by: )
SIGNED for and on behalf of )
CORDIANT PROPERTY HOLDINGS )
LIMITED by: )
SIGNED for and on behalf of )
ICM INTERNATIONAL LIMITED )
by: )
SIGNED for and on behalf of )
SWOT PLUS LIMITED )
by: )
SIGNED for and on behalf of )
THE DECISION SHOP LIMITED )
LIMITED by: )
SIGNED for and on behalf of )
XMSS LIMITED )
by: )
THE SWINGLINE BORROWER
----------------------
SIGNED for and on behalf of )
▇▇▇▇▇ US HOLDINGS INC. )
by: )
THE ARRANGERS
-------------
SIGNED for and on behalf of )
THE BANK OF NEW YORK )
by: )
SIGNED for and on behalf of )
HSBC INVESTMENT BANK PLC )
by: )
THE BANKS
---------
SIGNED for and on behalf of )
THE BANK OF NEW YORK )
by: )
135
SIGNED for and on behalf of )
HSBC BANK PLC )
by: )
THE AGENT SECURITY TRUSTEE AND COMMON SECURITY TRUSTEE
------------------------------------------------------
SIGNED for and on behalf of )
HSBC INVESTMENT BANK PLC )
by: )
THE SWINGLINE BANK
------------------
SIGNED for and on behalf of )
THE BANK OF NEWYORK )
by: )
THE OVERDRAFT BANK
------------------
SIGNED for and on behalf of )
HSBC BANK PLC )
by: )
136
The Parent
EXECUTED and DELIVERED as a DEED )
by CORDIANT COMMUNICATIONS GROUP PLC )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Original Borrowers
EXECUTED and DELIVERED as a DEED )
by CORDIANT COMMUNICATIONS GROUP PLC )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ UK LIMITED
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CORDIANT US HOLDINGS, INC. )
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇
Vice President
Authorised Signatory
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as attorney of )
▇▇▇▇▇ DEUTSCHLAND HOLDINGS GMBH )
in the exercise of a power of attorney )
in the presence of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ )
Attorney ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Witness ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
The Swingline Borrower
EXECUTED and DELIVERED as a DEED )
by CORDIANT US HOLDINGS, INC. )
Art D'Angelo
30
The Overdraft Borrowers
EXECUTED and DELIVERED as a DEED )
by ATLAS ADVERTISING LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ OVERSEAS HOLDINGS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ UK LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED
by CORDIANT COMMUNICATIONS GROUP PLC
)
)
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CORDIANT GROUP LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CORDIANT PROPERTY HOLDINGS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
31
EXECUTED and DELIVERED as a DEED )
by ICM INTERNATIONAL LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by SWOT PLUS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by THE DECISION SHOP LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by XMSS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Original Guarantors
EXECUTED and DELIVERED as a DEED )
by CORDIANT COMMUNICATIONS GROUP PLC )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ EUROPE LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ UK LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
32
EXECUTED and DELIVERED as a DEED )
by ATLAS ADVERTISING LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by THE DECISION SHOP LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ICM INTERNATIONAL LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CORDIANT US HOLDINGS, INC. )
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇
Vice President
Authorised Signatory
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ ADVERTISING USA, INC. )
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇
Vice President
Authorised Signatory
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ PUBLIC RELATIONS, INC. )
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇
Vice President
Authorised Signatory
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ADVERTISING, INC. )
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇
Vice President
Authorised Signatory
33
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ WORLDWIDE )
(DELAWARE), INC. )
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇
Vice President
Authorised Signatory
EXECUTED and DELIVERED as a DEED )
by CCG.XM, INC. )
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇
Vice President
Authorised Signatory
EXECUTED and DELIVERED as a DEED )
by HEALTHWORLD CORPORATION )
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇
Vice President
Authorised Signatory
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ HEALTHWORLD, INC. )
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇
Vice President
Authorised Signatory
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇ HEALTHWORLD, INC. )
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇
Vice President
Authorised Signatory
EXECUTED and DELIVERED as a DEED )
by LIGHTHOUSE GLOBAL NETWORK, INC. )
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇
Vice President
Authorised Signatory
EXECUTED and DELIVERED as a DEED )
by FITCH, INC. )
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇
Vice President
Authorised Signatory
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇▇ ▇▇▇▇▇ ASSOCIATES INC )
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇
Vice President
Authorised Signatory
34
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as attorney of )
▇▇▇▇▇ DEUTSCHLAND HOLDINGS GMBH )
in the exercise of a power of attorney )
in the presence of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ )
Attorney ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Witness ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as attorney of )
CORDIANT COMMUNICATIONS GROUP )
AUSTRALIA PTY LIMITED )
in the exercise of a power of attorney )
in the presence of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ )
Attorney ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Witness ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
The Overdraft Guarantors
EXECUTED and DELIVERED as a DEED )
by ATLAS ADVERTISING LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ OVERSEAS HOLDINGS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ UK LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CORDIANT COMMUNICATIONS GROUP PLC )
Director ▇▇▇▇▇▇ Boiand
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
35
EXECUTED and DELIVERED as a DEED )
by CORDIANT GROUP LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CORDIANT PROPERTY HOLDINGS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ICM INTERNATIONAL LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by SWOT PLUS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by THE DECISION SHOP LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by XMSS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by HEALTH WORLD HOLDINGS LIMITED )
36
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇▇ MARKETING GROUP LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by FITCH DESIGN CONSULTANTS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by FINANCIAL DYNAMICS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CONNECT SIX LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CONNECT FIVE LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CLARION COMMUNICATIONS (PR) LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
37
EXECUTED and DELIVERED as a DEED )
by CORPORATE AND FINANCIAL DESIGN LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by HEADCOUNT WORLDWIDE FIELD MARKETING )
LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by COLWOOD HEALTH WORLD LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ HEALTHWORLD LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇▇ MARKETING LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by FINANCIAL DYNAMICS HOLDINGS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by LIGHTHOUSE HOLDINGS (UK) LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
38
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by PSD ASSOCIATES LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇▇ & FRIENDS LONDON LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by N.A.S.A.2.0 LONDON LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CCG.XM )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CCG.XM HOLDINGS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by BAMBER FORSYTH LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by BULLETIN INTERNATIONAL LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
39
EXECUTED and DELIVERED as a DEED )
by BULLETIN INTERNATIONAL UK LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by PCI LIVE DESIGN LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ULTIMATE EVENTS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by BUSINESS COMMUNICATIONS INTERNATIONAL )
GROUP LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by FITCH WORLDWIDE LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Additional Overdraft Borrowers
EXECUTED and DELIVERED as a DEED )
by HEALTHWORLD HOLDINGS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇▇ MARKETING GROUP LIMITED )
40
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by HEADCOUNT WORLDWIDE )
FIELD MARKETING GROUP LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by COLWOOD HEALTHWORLD LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ HEALTHWORLD LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇▇ MARKETING LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by FINANCIAL DYNAMICS HOLDINGS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
41
by LIGHTHOUSE HOLDINGS (UK) LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by FITCH DESIGN CONSULTANTS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by FINANCIAL DYNAMICS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CONNECT SIX LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CONNECT FIVE LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CLARION COMMUNICATIONS (PR) LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by PSD ASSOCIATES LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
42
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇▇ & FRIENDS LONDON LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by N.A.S.A.2.0 LONDON LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CCG.M )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CCG.XM HOLDINGS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by BAMBER FORSYTH LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
DirectorlSecretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CORPORATE AND FINANCIAL DESIGN LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇ EUROPE UMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
43
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by BULLETIN INTERNATIONAL LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by BULLETIN INTERNATIONAL (UK) UMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by PCI LIVE DESIGN LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by BUSINESS COMMUNICATiONS INTERNATIONAL )
GROUP LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by FITCH WORLDWIDE LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CORDIANT (US) HOLDINGS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by FITCH INTERNATIONAL LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
44
EXECUTED and DELIVERED as a DEED )
by FITCH LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by HEALTHWORLD UK HOLDINGS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
HOLDINGS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by DECKCHAIR STUDIOS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by ▇▇▇ ▇▇▇▇▇ HOLDINGS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by C&FD (HOLDINGS LIMITED) )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CORDIANT OVERSEAS HOLDINGS LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
45
EXECUTED and DELIVERED as a DEED )
by PROPOSE TWO LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by SECURE TWO LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by SONIC SUN LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CCG.XM (UK) LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTED and DELIVERED as a DEED )
by CONNECT ONE LIMITED )
Director ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director/Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Arrangers
EXECUTED for an on behalf of )
THE BANK OF NEW YORK ) ▇▇▇▇▇ ▇▇▇▇▇▇
EXECUTED for an on behalf of )
HSBC INVESTMENT BANK PLC ) ▇▇▇▇ ▇▇▇▇▇
The Banks
EXECUTED for an on behalf of )
HSBC BANK PLC ) ▇▇▇▇ ▇▇▇
EXECUTED for an on behalf of )
THE BANK OF NEW YORK ) ▇▇▇▇▇ ▇▇▇▇▇▇
-46-
EXECUTED for an on behalf of )
ABN AMRO BANK N.V., LONDON BRANCH ) ▇▇▇ ▇▇▇▇▇▇
EXECUTED for an on behalf of )
ALLIED IRISH BANKS, PLC ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
EXECUTED for an on behalf of )
BANK OF SCOTLAND ) ▇▇▇▇▇ ▇▇▇▇▇▇
EXECUTED for an on behalf of )
BANQUE WORMS ) ▇▇▇▇ ▇▇▇▇▇
EXECUTED for an on behalf of )
CITIBANK, N.A. ) Gian Paolo Potsios
EXECUTED for an on behalf of )
FLEET NATIONAL BANK ) Stuary Paterson
EXECUTED for an on behalf of )
MIZUHO CORPORATE BANK, LTD ) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
EXECUTED for an on behalf of )
LLOYDS TSB BANK PLC ) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
EXECUTED for an on behalf of )
by THE ROYAL BANK OF SCOTLAND PLC ) ▇▇▇ ▇▇▇▇▇▇▇
EXECUTED for an on behalf of )
SCOTIABANK EUROPE PLC ) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
EXECUTED for an on behalf of )
WESTDEUTSCHE LANDESBANK GIROZENTRALE ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
The Agent, Security Trustee and Common Security Trustee
EXECUTED for an on behalf of )
HSBC INVESTMENT BANK PLC ) ▇▇▇▇ ▇▇▇▇▇
The Swingline Bank
EXECUTED for an on behalf of )
THE BANK OF NEW YORK ) ▇▇▇▇▇ ▇▇▇▇▇▇
-47-
The Overdraft Bank
EXECUTED for an on behalf of )
by HSBC BANK PLC ) ▇▇▇▇ ▇▇▇
-48-