EXHIBIT 4.7
Interim Support AGREEMENT
DATED 15 May 2003
BETWEEN
CORDIANT COMMUNICATIONS GROUP PLC
the Parent
CERTAIN SUBSIDIARIES OF THE PARENT
THE FINANCE PARTIES
And
HSBC BANK PLC
as Agent
as Security Trustee
and as Common Security Trustee
▇▇▇▇▇ & ▇▇▇▇▇
London
CONTENTS
Clause Page
1. Interpretation.......................................................................................1
2. Condition Precedent..................................................................................4
3. Support Period and Waivers...........................................................................4
4. Amendments to the Facilities Agreement and the Amended And Restated Note Purchase Agreement..........6
5. Representations and Warranties.......................................................................8
6. Undertakings........................................................................................10
7. Default.............................................................................................12
8. Expenses............................................................................................12
9. No Changes to the Obligors..........................................................................12
10. Amendments and Waivers..............................................................................12
11. Confidentiality.....................................................................................13
12. Stamp Duties........................................................................................14
13. Miscellaneous.......................................................................................14
14. Counterparts........................................................................................15
15. Notices.............................................................................................15
16. Jurisdiction and Governing Law......................................................................15
17. Contracts (Rights of Third Parties) Act 1999........................................................16
Schedule
1. Certain Subsidiaries................................................................................17
2. Banks...............................................................................................21
3. Current Noteholders.................................................................................22
4. Part 1 Specified Defaults - Facilities Agreement....................................................23
Part 2 Specified Defaults - Amended and Restated Note Purchase Agreement............................24
5. Conditions Precedent................................................................................25
Signatories..................................................................................................27
THIS AGREEMENT is dated 15 May 2003
BETWEEN:
(1) CORDIANT COMMUNICATIONS GROUP PLC (a company incorporated in England
(Registered No. 1320869) with its registered office at ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇) (the Parent);
(2) CERTAIN SUBSIDIARIES OF THE PARENT listed in Schedule 1;
(3) THE PERSONS listed in Schedule 2 as banks (the Banks);
(4) THE PERSONS listed in Schedule 3 as noteholders (the Current Noteholders);
and
(5) HSBC BANK PLC as the facility agent for the Banks (the Agent), as security
trustee for the Banks (the Security Trustee) and as the common security
trustee for the Finance Parties (the Common Security Trustee).
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement:
Amended and Restated Note Purchase Agreement has the meaning given to it in
the Facilities Agreement.
Australian Disposals means the following:
(a) the disposal by the Parent of its 58.4% ordinary shareholding in GPB to a
purchaser of 100% of the shares in GPB;
(b) the disposal by Cordiant Australia of its 41.6% ordinary shareholding in
GPB to that purchaser; and
(c) the disposal by GPB of its 50% interest in the "Market Force" business to
certain members of its management,
in each case with the prior written consent of the Banks and the
Noteholders and in accordance with the terms and conditions of that
consent.
Banking Day has the meaning given to it in the Facilities Agreement.
Commencement Date means the date on which the Agent and the Noteholders
provide the notifications specified in Clause 2 (Conditions precedent).
Composite Guarantee has the meaning given to it in Clause 3.2 (a) (viii).
Co-ordinators Committee means the ad hoc co-ordinating committee of certain
Banks and Noteholders from time to time acting in connection with
discussions in relation to the Facilities Agreement and the Amended and
Restated Note Purchase Agreement being, as at
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the date of this Agreement, HSBC Bank plc, The Bank of New York, Morgan
▇▇▇▇▇▇▇ & Co. International Limited, The Royal Bank of Scotland plc, The
Prudential Insurance Company of America and Cerberus Partners, L.P.
Cordiant Australia means Cordiant Communications (Australia) Pty Limited.
Couch Potato has the meaning given to it in Clause 3.2 (a) (iv).
Couch Potato Acquisition has the meaning given to it in Clause 3.2 (a)
(iv).
Couch Potato Summary has the meaning given to it in Clause 3.2 (a) (iv).
Default has the meaning given to it in the Facilities Agreement or the
Amended and Restated Note Purchase Agreement, as the context may require.
Disposal Summaries has the meaning given to it in Clause 3.2 (a) (vii).
Employee Retention Plan has the meaning given to it in Schedule 5.
Event of Default has the meaning given to it in the Facilities Agreement or
the Amended and Restated Note Purchase Agreement, as the context may
require.
excluded representations has the meaning given to it in Clause 11.2.2 of
the Facilities Agreement.
Executive Incentive Plan has the meaning given to it in Schedule 5.
Facilities Agreement means the facilities agreement dated 4th July, 2000
between the Parent, certain of its Subsidiaries as Borrowers, the Bank of
New York and HSBC Bank plc (successor to HSBC Investment Bank plc) as
Arrangers, the banks and financial institutions listed therein as Banks,
HSBC Bank plc as Agent, Security Trustee and Common Security Trustee, the
Bank of New York as Swingline Bank and HSBC Bank plc as Overdraft Bank, as
amended and restated pursuant to a restructuring deed dated 19th April,
2002 and as further amended, restated and supplemented from time to time.
GPB means Cordiant Communications Group Australia Pty Limited.
Group Structure Chart has the meaning given to it in Schedule 5.
Intercreditor Agreement has the meaning given to it in the Facilities
Agreement.
Issuer has the meaning given to it in the Amended and Restated Note
Purchase Agreement.
Key Clients means those persons identified as "Key Clients" in the report
prepared by the Parent dated 7th May, 2003 delivered by the Parent to the
Banks and the Noteholders pursuant to paragraph 14 of Schedule 5 of this
Agreement.
Liabilities has the meaning given to it in the Intercreditor Agreement.
Majority Creditors has the meaning given to it in the Intercreditor
Agreement.
Net Proceeds has the meaning given to it in the Amended and Restated Note
Purchase Agreement or the Facilities Agreement, as the context may require.
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New Money has the meaning given to it in the Intercreditor Agreement.
Obligor has the meaning given to it in the Facilities Agreement.
Party means a party to this Agreement.
Put Elimination Conditions has the meaning given to it in the Amended and
Restated Note Purchase Agreement.
Specified Defaults means the existing Defaults and Events of Default in
respect of the Facilities Agreement that are specified in Schedule 4 Part
A, and the existing Defaults and Events of Default in respect of the
Amended and Restated Note Purchase Agreement that are specified in Schedule
4 Part B.
Support Period means the period from the Commencement Date up to and
including the earlier of:
(a) 15th July, 2003;
(b) the occurrence of any Default or Event of Default (other than a
Specified Default);
(c) any breach of or failure to comply with any term or condition of this
Agreement by any Obligor;
(d) any representation or warranty made by any Obligor under this
Agreement being or proving to have been incorrect or misleading in any
material respect;
(e) any Key Client terminating (or failing to renew) all or any material
part of its business with the Group or, in the opinion of the Majority
Creditors, doing any act or thing evidencing an intention to do so;
(f) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ceasing (or giving notice to cease) to be the Group's
Chairman, ▇▇▇▇▇ ▇▇▇▇▇ ceasing (or giving notice to cease) to be the
Group's Chief Executive Officer or ▇▇▇▇ ▇▇▇▇▇▇ ceasing (or giving
notice to cease) to be the Group's Finance Director (in each case
other than due to death or incapacity);
(g) the termination (or variation that in the opinion of the Co-ordinators
Committee is material) of Talbot ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP's engagement by
the Parent or Talbot ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP ceasing (or giving notice to
cease) to perform the functions for which it has been employed or the
Parent ceasing to co-operate with Talbot ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in the
performance of such functions, save where a replacement adviser has
been appointed to perform those functions that is satisfactory to the
Majority Creditors (acting reasonably); and
(h) a failure to deliver, or any admission by the Parent that it is not
able to deliver, the weekly certificate referred to in Clause 6.2(a)
of this Agreement.
Westbourne Terrace Letter has the meaning given to it in Clause 3.2 (b).
Westbourne Terrace Transaction has the meaning given to it in Clause 3.2
(b).
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1.2 Definitions
Unless the context requires and save as otherwise defined herein, words and
expressions defined in the Facilities Agreement shall have the same meanings
when used in this Agreement.
1.3 Incorporation of Certain References
Clauses 1.3 and 1.4 of the Facilities Agreement shall be deemed to be
incorporated in this Agreement in full, mutatis mutandis, save that in Clauses
1.4.3 and 1.4.10 of the Facilities Agreement, references to "the Agent" shall be
read and construed as if referring to "the Agent and the Noteholders" and
references to "this Agreement" shall be read and construed as if referring to
this Agreement.
2. Condition Precedent
(a) The acknowledgements, waivers, consents and amendments granted by the
Finance Parties under this Agreement are subject to the condition precedent
that the Agent and the Noteholders have notified the Parent that they have
received the documents and evidence set out in Schedule 5 in each case in
form and substance satisfactory to them; and
(b) The conditions specified in paragraph (a) are inserted solely for the
benefit of the Finance Parties and may be waived on their behalf in whole
or in part and with or without conditions by the Majority Creditors, other
than in the case of the evidence of the payment referred to in paragraph 3
of Schedule 5 which may only be waived with the consent of all of the
Banks.
3. Support Period and Waivers
3.1 Temporary Waivers, Additional Waivers and Available Facilities
(a) The Finance Parties agree, subject to the terms and conditions of this
Agreement, to temporarily suspend and waive all of their respective rights
to take action in respect of the Specified Defaults during the Support
Period.
(b) For the avoidance of doubt, at the end of the Support Period (unless the
Majority Creditors in their absolute discretion otherwise agree) there
shall be immediate Events of Default under both the Facilities Agreement
and the Amended and Restated Note Purchase Agreement by virtue of the
Specified Defaults (and the Finance Parties' respective rights and remedies
in respect thereof shall revive).
3.2 Additional Waivers; Consents
(a) With effect from the Commencement Date the Finance Parties hereby agree to:
(i) permit the Group's existing Euro-Zone Cash Pooling Arrangements to
continue to be conducted with ABN AMRO N.V. until and including 15th
July, 2003;
(ii) extend to 31st May, 2003 the date by which the Parent is obliged to
deliver written confirmations (which shall also extend to this
Agreement) duly executed by Cordiant Australia and GPB pursuant to
paragraphs 5(g) and 8(d) of the waiver and amendment letters dated
12th March, 2003 (as extended on 21st March, 2003) provided that the
Parent shall not be obliged to deliver such confirmations if the
Australian Disposals have completed on or prior to 31st May, 2003;
(iii) permit N.A.S.A 2.0 London Limited to be liquidated on a solvent
basis;
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(iv) permit the acquisition (the Couch Potato Acquisition) by ▇▇▇▇▇▇ &
Friends AG of a 51 per cent. shareholding in Couch Potatoes
Fernsehproduktions GmbH (Couch Potato) on the terms and conditions
set out in the transaction summary delivered by the Parent to the
Agent and the Noteholders dated 7th April, 2003 with such amendments
as the Majority Creditors may agree (the Couch Potato Summary) and
to waive the breaches of Clause 12.2.4 of the Facilities Agreement
and Section 10.1.6 of the Amended and Restated Note Purchase
Agreement arising from the execution of documentation, prior to the
date hereof, consistent with the Couch Potato Summary;
(v) permit ▇▇▇▇▇▇ & Friends AG to assign its right to receive 51 per
cent. of the dividend paid by Couch Potato in respect of the
financial year ending 31st December, 2002 to ▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ as more particularly described in the Couch Potato Summary;
(vi) permit 486,818 ordinary shares in ▇▇▇▇▇▇ & Friends AG to be issued
to ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on the terms and conditions set out in
the Couch Potato Summary;
(vii) permit Microarts Corporation and Interactive Edge Inc. to be
disposed of on the terms and conditions set out in the summaries
relating to such disposals which were delivered to the Agent and the
Noteholders on 10th April, 2003 (the Disposal Summaries); and
(viii) instruct the Common Security Trustee to release:
(A) the shares in Microarts Corporation from the security created
by the Security Documents and Microarts Corporation from its
obligations under the composite guarantee dated 19th April,
2002 entered into between, inter alios, the Parent, Microarts
Corporation and the Common Security Trustee (the Composite
Guarantee) in each case on the completion of the disposal of
Microarts Corporation in accordance with Clause 3.2(a)(vii)
of this Agreement on the basis that an amount equal to the
Net Proceeds thereof are applied in prepayment of the
Facilities and, to the extent relevant, the Notes as required
by the Finance Documents (subject at all times to the
Intercreditor Agreement); and
(B) the shares in Interactive Edge Inc. from the security created
by the Security Documents and Interactive Edge Inc. from its
obligations under the Composite Guarantee, in each case on
the completion of the disposal of Interactive Edge Inc in
accordance with Clause 3.2(a)(vii) of this Agreement on the
basis that an amount equal to the Net Proceeds thereof is
applied in prepayment of the Facilities and, to the extent
relevant, the Notes as required by the Finance Documents
(subject at all times to the Intercreditor Agreement).
(b) The Current Noteholders hereby agree to permit the Parent to bring post
production facilities into Westbourne Terrace (the Westbourne Terrace
Transaction) on the terms and conditions set out in the letter to the
Noteholders dated 6th January, 2003 (the Westbourne Terrace Letter).
3.3 Available Facilities
(a) During the Support Period, subject to the other terms and conditions of the
Facilities Agreement but notwithstanding the fact that the Specified
Defaults have occurred and the
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Parent and the other Borrowers are unable to comply with Clauses 3.2.1 and
3.2.3 of the Facilities Agreement, the Finance Parties agree that:
(i) the Overdraft Borrowers shall be permitted to make further
Utilisations under the Overdraft Facility; and
(ii) the Borrowers (other than ▇▇▇▇▇ Deutschland Holding GmbH) shall be
permitted to draw further Advances under the Revolving Credit
Facility with Revolving Credit Terms of one month.
(b) For the avoidance of doubt, Clause 3.2.1(b) of the Facilities Agreement
still applies in relation to any Defaults other than the Specified
Defaults.
(c) No Swingline Advance or Swingline Letter of Credit may be requested or
borrowed.
(d) All other outstanding Utilisations and Advances shall remain subject to the
existing terms and conditions of the Facilities Agreement.
3.4 Put Elimination Date
Notwithstanding anything in this Agreement to the contrary, the Defaults and
Events of Default waived temporarily pursuant to this Agreement are not waived
for the purposes of Section 8.8(f)(iii) of the Amended and Restated Note
Purchase Agreement (Elimination of Refinancing Put) and shall in no way affect
the determination of whether the Put Elimination Conditions shall have been
satisfied, and the Parent and the Issuer hereby acknowledge and agree that for
this purpose Defaults and Events of Default arising out of matters specified in
this Agreement shall have occurred and shall be continuing at the time of any
determination of the Put Elimination Conditions (unless otherwise waived by the
Noteholders subsequent to the Commencement Date).
4. AMENDMENTS TO THE FACILITIES AGREEMENT AND THE AMENDED AND RESTATED NOTE
PURCHASE AGREEMENT
The following amendments to the Facilities Agreement and the Amended and
Restated Note Purchase Agreement shall take effect on and from the Commencement
Date, subject to the terms and conditions of this Agreement.
4.1 Deferred Fee
The existing Clause 9.1.8 of the Facilities Agreement shall be deleted and shall
be replaced with the following:
"9.18 Deferred fee: (to the extent not paid in cash pursuant to the Interim
Support Agreement dated on or about 14th May, 2003 relating to this
Agreement) on 8th November, 2004 or on such earlier date (if any) on
which:
(i) the Total Commitments are or have been reduced to zero and all of
the outstanding Advances and Utilisations have been repaid in full
or have become due and payable in full (whether by virtue of any
notice given by the Agent under Clause 14.2 or otherwise); or
(ii) any enforcement of any Security Document occurs; or
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(iii) the Parent is obliged to procure that it and the other Borrowers
permanently prepay all of the Facilities in full; or
(iv) any "PIK Management Fee" or "Deferred Make Whole Amount" (each as
defined in the Amended and Restated Note Purchase Agreement)
becomes due and payable or is paid or the PIK Management Fee
Payment Date occurs,
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 arrear from the date of
the execution of the Agreement in Principle and shall be
calculated on each accrual date as 0.25 per cent. of the average
of the daily Sterling Amount of the principal outstandings
(including any Outstanding L/C Liability) under the Facilities
during the two most recent Quarters, together with interest on
such deferred fee which shall accrue at 9.25 per cent. per annum
on the amount of each quarterly accrual of the deferred fee; and".
4.2 Zenith Joint Venture Agreement
Clause 8.6.3 of the Facilities Agreement shall be amended by adding the words
"an amount equal to" immediately before the words "the Net Proceeds" in line 3.
4.3 Permitted Acquisitions
Clause 12.2.6(c) of the Facilities Agreement shall be deleted. Sub-paragraph (d)
of the definition of "Permitted Acquisitions" in Schedule B of the Amended and
Restated Note Purchase Agreement shall be deleted.
4.4 Dividends
In Clause 12.2.12(b) of the Facilities Agreement the words from (and including)
the words "except that it may declare and pay a final dividend" to the end of
that Clause shall be deleted. In Section 10.1.11 (b) of the Amended and Restated
Note Purchase Agreement the words from (and including) the words "except that it
may declare and pay a final dividend" to the end of that Section shall be
deleted.
4.5 Adminstration
(a) The existing Clause 14.1.12 of the Facilities Agreement shall be deleted
and shall be replaced with the following:
"14.1.12 Administration: (a) any meeting of the shareholders, directors or
other officers of any Obligor or any Material Subsidiary is
convened for the purpose of considering any resolution to present
an application for an administration order or appoint an
administrator or any such resolution is passed or (b) any person
presents a petition or files a document with a court for the
administration of any Obligor or any Material Subsidiary or (c)
an administration order is made or administrator otherwise
appointed in relation to any Obligor or any Material Subsidiary
or (d) the shareholders, directors or other officers of any
Obligor or any Material Subsidiary request the appointment of or
give notice of their intention to appoint an administrator in
respect of any Obligor or any Material Subsidiary or (e) any
other step is taken by any person with a view to any appointment
of an administrator in respect of any Obligor or any Material
Subsidiary; or".
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(b) The existing Section 11 of the Amended and Restated Note Purchase Agreement
shall be amended by (i) renumbering sub-paragraph (h) as sub-paragraph
(h)(1) and (ii) by adding the following new sub-paragraph (h)(2) to read as
follows:
"(2) (i) any meeting of the shareholders, directors or other officers of
any Obligor or any Material Subsidiary is convened for the purpose of
considering any resolution to present an application for an administration
order or appoint an administrator or any such resolution is passed or (ii)
any person presents a petition or files a document with a court for the
administration of any Obligor or any Material Subsidiary or (iii) an
administration order is made or administrator otherwise appointed in
relation to any Obligor or any Material Subsidiary or (iv) the
shareholders, directors or other officers of any Obligor or any Material
Subsidiary request the appointment of or give notice of their intention to
appoint an administrator in respect of any Obligor or any Material
Subsidiary or (v) any other step is taken by any person with a view to any
appointment of an administrator in respect of any Obligor or any Material
Subsidiary; or".
4.6 Auditors Reports
(a) Section 11 of the Amended and Restated Note Purchase Agreement shall be
amended by (i) replacing "." with "; or" at the end of sub-paragraph (q)
and (ii) adding the following new sub-paragraph (r) immediately following
sub-paragraph (q) to read as follows:
"(r) 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 Noteholders 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 the Auditors include in that report
any emphasis of matter statement in relation to any fundamental
uncertainty."; and
(b) The existing Clause 14.1.22 of the Facilities Agreement shall be amended by
adding the words "or the Auditors include in that report any emphasis of
matter statement in relation to any fundamental uncertainty" immediately
after the words "end of such period".
5. Representations and Warranties
5.1 Repetition of representations and warranties
The representations and warranties in Clause 11.1 of the Facilities Agreement
and in this Clause 5 (including Clause 11.1.8 of the Facilities Agreement but
excluding the other excluded representations) shall be deemed to be repeated by
the Parent on the date of this Agreement and on the Commencement Date as if made
with reference to the facts and circumstances existing on each such day. The
representations and warranties in Section 5 of the Amended and Restated Note
Purchase Agreement (excluding Sections 5.3, 5.16, 5.17, 5.21, 5.26, 5.27 and
5.28) shall be deemed to be repeated by the Parent and the Issuer on the date of
this Agreement and on the Commencement Date as if made with reference to the
facts and circumstances existing on each such day. The repetition of the
representation and warranties set out in Clause 11.1.8 of the Facilities
Agreement and Section 5.20 of the Amended and Restated Note Purchase Agreement
on the date of this Agreement shall be deemed to be made as if qualified by the
statement "other than the Specified Defaults and those other Defaults and Events
of Default which are waived pursuant to the Interim Support Agreement".
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5.2 Zenith Joint Venture Agreement
The Parent represents and warrants to each Finance Party that:
(a) any and all of the Group's right, interest and title in respect of shares
in Zenith are and will be held at all times by the Zenith SPV; and
(b) the copy of the joint venture agreement dated 27th September, 2001 between
Cordiant Communications Group plc, Publicis Groupe SA and Mediavista
Limited which was delivered to ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP by
the Parent's legal advisers on or about 17th April, 2003 is true, complete
and accurate in all respects and, save as referred to therein, no other
agreements, arrangements or understandings exist between all or any of the
parties to that agreement which might materially affect the transactions or
arrangements contemplated by the Finance Documents and that such copy is
identical to the copy of the joint venture agreement relating to Zenith
which was delivered to the Agent pursuant to the Restructuring Deed.
5.3 Waiver Request Package
(a) The Parent represents and warrants to each Finance Party that:
(i) all factual statements contained in the Waiver Request Package (as
defined below) were, as at the date of this Agreement and the
Commencement Date, true and accurate in all material respects and
did not contain any untrue statement of a material fact or omit to
state a fact necessary in order to make not misleading in any
material respect the statements contained therein; and
(ii) all financial projections which have been prepared by the Parent (or
on its behalf) and contained in the Waiver Request 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 Finance Party.
(b) For the purposes of this Clause 5.3, Waiver Request Package means:
(i) the Couch Potato Summary;
(ii) the Disposal Summaries;
(iii) the Westbourne Terrace Letter; and
(iv) all other information projections and documentation (as updated in
writing with the consent of the Agent and the Noteholders prior to
the Commencement Date) provided to the Agent, to the Noteholders or
to PricewaterhouseCoopers by the Parent or its advisers in relation
to:
(A) the Couch Potato Acquisition;
(B) either of the disposals referred to in the Disposal Summaries;
(C) the Australian Disposals;
(D) the Zenith Joint Venture Agreement;
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(E) the Westbourne Terrace Transaction; or
(F) any of the waivers, consents, amendments or instructions
contained in this Agreement.
5.4 Issues with Key Clients
The Parent represents and warrants to each Finance Party that (after due and
careful enquiry) it is not aware of any issues in the Group's relationship with
any of its Key Clients that might (i) indicate that there is a risk that such
Key Client intends to terminate (or fail to renew) all or any material part of
its business with the Group or (ii) result in such a termination or failure to
renew, save as fully and fairly disclosed in the report delivered pursuant to
paragraph 14 of Schedule 5 of this Agreement.
5.5 Group Structure Chart
The Parent represents and warrants to each Finance Party that the Group
Structure Chart is a true, complete and correct representation of the structure
of all members of the Group (and any companies, joint ventures, businesses or
other persons in which the Parent (or any other member of the Group) has an
interest) and describes the corporate ownership structure of the Parent's
Subsidiaries including all minority interests in such Subsidiaries, in each case
as at the Commencement Date.
5.6 Constitutional Documents
The Parent represents and warrants to each Finance Party that the constitutional
documents of each Obligor which were delivered to the Agent pursuant to the
Restructuring Deed and the Noteholders pursuant to the Amended and Restated Note
Purchase Agreement have not been amended or varied, other than only to the
extent necessary to implement or reflect a change of name that has been
disclosed in the Group Structure Chart and related reconciliation delivered
under this Agreement.
6. Undertakings
6.1 Duration
The undertakings in this Clause 6 shall remain in force from the date of this
Agreement and throughout the Support Period.
6.2 Undertakings
The Parent undertakes to each Finance Party:
(a) to deliver to the Agent and the Noteholders every Friday (i) a 13-week
cashflow forecast, (ii) a 4-week daily cashflow forecast and (iii) a
certificate (the weekly certificate), signed by the Group's Finance
Director (without personal liability (other than to the extent imposed by
applicable law)), stating that the Group has sufficient liquidity for the
following 13 week period. Each such forecast shall be delivered together
with an analysis and explanation in writing of that forecast by the Group
Finance Director, which, in particular, shall highlight and comment on any
material tightening of the terms and conditions of the Group's supplier
credit;
(b) to ensure that no member of the Group makes any cash payments in respect of
any earn out arrangement other than as disclosed in writing to the Banks
and the Noteholders on 30th April, 2003;
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(c) to ensure that the Borrowers will not utilise the Facilities other than to
the extent required to fund the Group's actual cash needs at that time;
(d) to ensure that the total Capital Expenditure of all members of the Group
during the Support Period shall not exceed (pound)4,000,000 (or its
equivalent), being the amount indicated in the cash budget delivered
pursuant to Schedule 5 to this Agreement;
(e) to continue to pursue actively the disposals programme (the Disposals
Programme) and the other strategic options described in its presentation to
the Banks and the Noteholders dated 28th April, 2003 or during the
conference call with the Banks and the Noteholders on the evening of 30th
April, 2003 (it being acknowledged that any such disposal is subject to the
requisite consents of the Banks and the Noteholders) and, without limiting
the foregoing, to use all reasonable commercial efforts to complete the
Australian Disposals on terms and conditions satisfactory to the Banks and
the Noteholders by 15th May, 2003;
(f) to keep the Co-ordinators Committee and the advisers to the Banks and the
Noteholders fully and promptly informed of (i) the progress of the
Disposals Programme and (ii) any approaches to the Group or its advisors of
any kind whatsoever by any potential purchaser of all or any part of the
Group's business, assets or undertaking or a controlling shareholding in
the Parent and any material developments in the Group's (or its advisors')
discussions with any such potential purchaser;
(g) to keep the Co-ordinators Committee and the advisers to the Banks and the
Noteholders fully and promptly informed of any material developments in the
Group's relationship with any of its Key Clients that might (i) indicate
that there is a risk that such Key Client intends to terminate (or fail to
renew) all or any material part of its business with the Group or (ii)
result in such a termination or failure to renew;
(h) to assist PricewaterhouseCoopers in the development of contingency plans
for the Banks and the Noteholders;
(i) to deliver or procure that there is delivered to the Agent and the
Noteholders by no later than 1st July, 2003 a detailed plan relating to the
continued implementation of the Disposals Programme prepared by the Parent
with Talbot ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and approved by the board of directors of
the Parent in form and substance satisfactory to the Banks and the
Noteholders;
(j) to deliver to the Agent (for the distribution to the Banks) and to the
Noteholders sufficient copies for all of the Banks and the Noteholders of
the audited consolidated financial statements of the Group for the
Financial Year ended 31st December, 2002 (and the other items referred to
in Clause 12.1.6(a) of the Facilities Agreement and Section 7.1(d)(i) of
the Amended and Restated Note Purchase Agreement) together with the
auditors' report referred to in Clause 12.1.6(e) of the Facilities
Agreement and Section 7(d)(v) of the Amended and Restated Note Purchase
Agreement as soon as possible after the date of this Agreement and in any
event by no later than 30th June, 2003;
(k) that no transfer or other disposal of any interest in any share in Zenith
at any time will occur without the prior written consent of the Majority
Creditors and that the Zenith SPV and the Parent will not transfer or
otherwise dispose of or compromise any of their respective rights under or
in respect of the Zenith Joint Venture Agreement;
(l) that the Zenith SPV will not create any Encumbrance over any interest in
any share in Zenith (and each of the Parent and the Zenith SPV will not
create any Encumbrance over any of their
11
respective rights under or in respect of the Zenith Joint Venture
Agreement) except under a Security Document;
(m) to ensure that ▇▇▇▇▇ Deutschland Holding GmbH will grant, in favour of the
Common Security Trustee, security (in form and substance satisfactory to
the Agent and the Noteholders) over the shares which it owns in ▇▇▇▇▇▇ &
Friends AG, within two weeks of a request by the Agent and the Noteholders
to provide such security; and
(n) to deliver, or procure that there is delivered, to the Agent and the
Noteholders by no later than 30th May, 2003, legal opinions addressed to
the Finance Parties (in form and substance satisfactory to the Agent and
the Noteholders) in respect of Microarts Corporation and Interactive Edge
Inc. in the event that either of those entities has not been disposed of by
that date in accordance with the Disposal Summaries.
7. Default
7.1 Event of Default
There shall be an immediate Event of Default under the Facilities Agreement and
under the Amended and Restated Note Purchase Agreement on the occurrence of any
of the events specified in the definition of Support Period in Clause 1.1 above
(other than that in paragraph (a) of such definition) unless the Majority
Creditors in their absolute discretion otherwise agree.
8. Expenses
8.1 Fees and expenses
The Parent shall forthwith on demand pay all professional fees and expenses
(including but not limited to the fees of ▇▇▇▇▇ & Overy, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP
and PricewaterhouseCoopers) incurred by any Finance Party in connection with the
waivers, releases, consents, amendments and instructions under or relating to
this Agreement or to any of the Finance Documents and all related documentation
contemplated in such waivers, releases, consents, amendments and instructions
whether or not the Commencement Date occurs.
8.2 Enforcement costs
The Parent shall forthwith on demand pay to each Finance Party the amount of all
costs and expenses (including legal fees) incurred in connection with the
enforcement of, or the preservation of any rights under, any Finance Document.
9. No Changes to the Obligors
9.1 Transfer of Obligors
No Obligor may assign, transfer or novate or dispose of any of, or any interest
in, any of its rights and/or obligations under the Finance Documents.
10. Amendments and Waivers
10.1 Procedure
(a) Except as provided in this Clause, any term of this Agreement may be
amended or waived with the agreement of the Parent and the Majority
Creditors. The Agent may effect, on behalf
12
of the Banks, any amendment or waiver permitted under this Clause. Any such
amendment or waiver with the requisite consent shall be binding on all the
Parties.
(b) The Agent shall promptly notify the Banks of any amendment or waiver
effected under paragraph (a).
10.2 Exceptions
(a) An amendment or waiver not agreed by a Finance Party which:
(i) relates to this Clause 10 (Amendments and Waivers); or
(ii) relates to a term of this Agreement which expressly requires the
consent of that Party,
is not binding on that Party.
(b) An amendment or waiver which affects the rights and/or obligations of the
Common Security Trustee or the Agent may not be effected without
respectively the consent of the Common Security Trustee or the Agent.
10.3 Waivers and remedies cumulative
The rights of each Finance Party under this Agreement:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of that
right.
11. Confidentiality
(a) Each Finance Party must keep confidential the terms of this Agreement and
any information supplied to it by or on behalf of any Obligor in connection
with this Agreement. However, a Finance Party is entitled to disclose
information:
(i) which is publicly available, other than as a result of a breach by
that Finance Party of this Clause;
(ii) in connection with any legal, regulatory or arbitration proceedings;
(iii) if required to do so under any law or regulation;
(iv) to a government, banking, taxation or other regulatory authority;
(v) to its officers, directors, employees and professional advisers;
(vi) to the extent allowed under paragraph (b) below; or
(vii) with the agreement of the Parent (as the Obligors' agent for the
purposes of this Clause).
13
(b) A Finance Party may disclose to an Affiliate or any person with whom it may
enter, or has entered into, any kind of transfer, participation or other
agreement in relation to this Agreement (a participant):
(i) a copy of this Agreement and
(ii) any information which that Finance Party has acquired under or in
connection with this Agreement.
However, before a participant may receive any confidential information, it
must agree with the relevant Finance Party to keep that information
confidential in accordance with the terms of paragraph (a) above.
12. Stamp Duties
The Parent shall pay, and forthwith on demand indemnify each Finance Party
against any liability it incurs in respect of, any stamp, registration and
similar tax which is or becomes payable in connection with the entry into,
performance or enforcement of this Agreement.
13. Miscellaneous
13.1 This Agreement is a "Bank Finance Document" for the purposes of the
Facilities Agreement, a "Security Document" for the purposes of Clause 7.1
of the Intercreditor Agreement, and a "Finance Document" for the purpose of
the Amended and Restated Note Purchase Agreement.
13.2 To the extent that any amount that is paid to, or received by, any Finance
Party in respect of its Liabilities is, pursuant to the Intercreditor
Agreement, required to be applied towards any other Liabilities, that
Finance Party's relevant Liabilities will be deemed not to have been
reduced or discharged by that payment or receipt and will be payable at the
earliest time that is in accordance with the Intercreditor Agreement (and,
if interest is not otherwise accruing on those Liabilities under the
Finance Documents, interest will accrue on those Liabilities (a) (in the
case of a Bank) under the Facilities Agreement as if they were unpaid sums
under that agreement, but at a rate 1 per cent. per annum less than which
would otherwise be applicable under Clause 5.5.2 of the Facilities
Agreement or (b) (in the case of a Noteholder) under Section 8.1(a)(ii) of
the Amended and Restated Note Purchase Agreement as if they were principal
amounts of the Notes).
13.3 Save as waived, consented to or amended by this Agreement the provisions of
the Facilities Agreement and the Amended and Restated Note Purchase
Agreement shall continue in full force and effect and the Facilities
Agreement or, as the case may be, the Amended and Restated Note Purchase
Agreement and this Agreement shall be read and construed as one instrument.
Where there is an inconsistency between this Agreement and the Facilities
Agreement or, as the case may be, the Amended and Restated Note Purchase
Agreement this Agreement will prevail.
13.4 For the avoidance of doubt, the Parent and each other Obligor also
represents and warrants that its obligations under the Security Documents
(and in the case of the Parent, those obligations of each other Obligor)
continue in full force and effect (and guarantee and secure (as
appropriate) all Liabilities including, without limitation, in respect of
the Notes and the Amended and Restated Note Purchase Agreement or the
Facilities Agreement (in each case as amended by this Agreement) and the
Finance Parties' other interests under the Finance Documents),
notwithstanding the waivers, amendments and consents granted or made
14
pursuant to this Agreement. The Parent and each Obligor shall, if and when
at any time required by the Agent or the Noteholders (to the extent legally
possible) execute such further documents, confirmations, guarantees and
Encumbrances in favour of or for the benefit of the Common Security Trustee
and the other Finance Parties and do all acts and things as the Agent and
the Noteholders shall from time to time require in relation to the Security
Documents to perfect, protect or confirm the guarantees and security
intended to be created by those documents.
13.5 In order to induce the Finance Parties to enter into this Agreement, each
Obligor acknowledges and agrees that (a) no Obligor has any claim or cause
of action against any Finance Party (or any of their respective directors,
officers, employees or agents) (b) no Obligor has any offset right,
counterclaim or defence of any kind against any of its respective
obligations, indebtedness or liabilities to any Finance Party and (c) each
Finance Party has, up to the date of this Agreement, properly performed and
satisfied in a timely manner all of its obligations to the Obligors. The
Obligors wish to eliminate any possibility that any past conditions, acts,
omissions, events, circumstances or matters would impair or otherwise
adversely affect any of the Finance Parties' rights, interests, contracts,
collateral security or remedies. Therefore, each Obligor unconditionally
releases, waives and forever discharges (i) any and all liabilities,
obligations, duties, promises or indebtedness of any kind of any Finance
Party to any Obligor, except the obligations to be performed by any Finance
Party on or after the date hereof as expressly stated in this Agreement and
the Finance Documents and (ii) all claims, offsets, causes of action, suits
or defences of any kind whatsoever (if any), whether arising at law or in
equity, whether known or unknown, which any Obligor might otherwise have
against any Finance Party or any of its directors, officers, employees or
agent, in either case (i) or (ii), on account of any past or presently
existing condition, act, omission, event, contract, liability, obligation,
indebtedness, claim, cause of action, defence, circumstance or matter of
any kind.
13.6 Each Obligor agrees to be bound by this Agreement notwithstanding that any
person intended to execute or to be bound by this Agreement may not do so
or may not be effectually bound.
14. Counterparts
This Agreement may be executed in any number of counterparts, and this has the
same effect as if the signatures on the counterparts were on a single copy of
this Agreement.
15. Notices
All notices or other communications under this Agreement shall be made by
letter, facsimile or in person and shall be deemed to be duly given or made when
delivered to (in the case of by letter or person) or when received (in the case
of facsimile) the relevant party at its address or facsimile number as specified
in the Finance Documents and for the attention of the person therein specified
(or such other address or facsimile number as may be specified to each other
party hereto on at least five Banking Days' prior to notice).
16. Jurisdiction and Governing Law
16.1 Governing law
This Agreement is governed by English Law.
15
16.2 Submission
For the benefit of each Finance Party, each Obligor agrees that:
(a) the courts of England have exclusive jurisdiction to settle any disputes in
connection with this Agreement; and
(b) the English Courts are the most appropriate and convenient courts to settle
any such disputes.
16.3 Service of process
Without prejudice to any other mode of service, each Obligor not incorporated in
England and Wales:
(a) irrevocably appoints the Parent as its agent for service of process in
relation to any proceedings before the English courts in connection with
this Agreement (and the Parent irrevocably and unconditionally accepts that
appointment);
(b) agrees that failure by the process agent to notify the relevant Obligor of
the process will not invalidate the proceedings concerned;
(c) consents to the service of process relating to any such proceedings by
prepaid posting of a copy of the process to its address for the time being
notified under Clause 15 (Notices).
16.4 Forum convenience and enforcement abroad
Each Obligor:
(a) waives objection to the English courts on grounds of inconvenient forum or
otherwise as regards proceedings in connection with this Agreement; and
(b) agrees that a judgment or order of an English court in connection with this
Agreement is conclusive and binding on it and may be enforced against it in
the courts of any other jurisdiction.
16.5 Non-exclusivity
Nothing in this Clause 16 limits the right of any Finance Party to bring
proceedings against an Obligor in connection with the Finance Documents:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
16.6 Waiver of trial by jury
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.
17. Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇
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.
16
SCHEDULE 1
CERTAIN SUBSIDIARIES
CORDIANT FINANCE, INC.
ATLAS ADVERTISING LIMITED
▇▇▇▇▇ EUROPE LIMITED
▇▇▇▇▇ UK LIMITED
HP:ICM LIMITED
THE DECISION SHOP LIMITED
▇▇▇▇▇ DEUTSCHLAND HOLDINGS GMBH
▇▇▇▇▇ ADVERTISING USA, INC.
▇▇▇▇▇ HEALTHWORLD, INC.
▇▇▇▇▇ WORLDWIDE (DELAWARE), INC.
BAMBER FORSYTH LIMITED
CCG.XM, INC.
CORDIANT US HOLDINGS, INC.
▇▇▇▇ HEALTHWORLD, INC.
FITCH, INC.
141 GERMANY GMBH
HEALTHWORLD CORPORATION
LIGHTHOUSE GLOBAL NETWORK, INC.
▇▇▇▇▇▇-▇▇▇▇▇ ASSOCIATES, INC.
HEALTHWORLD UK LIMITED
▇▇▇▇▇ OVERSEAS HOLDINGS LIMITED
BULLETIN INTERNATIONAL LIMITED
BULLETIN INTERNATIONAL UK LIMITED
FD INTERNATIONAL LIMITED
17
C&FD (HOLDINGS) LIMITED
CCG.XM
CCG.XM HOLDINGS LIMITED
CCG.XM (UK) LIMITED
CLARION COMMUNICATIONS (P.R.) LIMITED
COLWOOD HEALTHWORLD LIMITED
CONNECT FIVE LIMITED
CONNECT ONE LIMITED
CONNECT SIX LIMITED
CORDIANT GROUP LIMITED
CORDIANT OVERSEAS HOLDINGS LIMITED
CORDIANT PROPERTY HOLDINGS LIMITED
CORDIANT (US) HOLDINGS LIMITED
CORPORATE & FINANCIAL DESIGN LIMITED
DECKCHAIR STUDIO LIMITED
FINANCIAL DYNAMICS HOLDINGS LIMITED
FINANCIAL DYNAMICS LIMITED
FITCH INTERNATIONAL LIMITED
FITCH LIMITED
FITCH WORLDWIDE LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ HOLDINGS LIMITED
HEADCOUNT WORLDWIDE FIELD MARKETING LIMITED
HEALTHWORLD HOLDINGS LIMITED
HEALTHWORLD UK HOLDINGS LIMITED
LIGHTHOUSE HOLDINGS (UK) LIMITED
▇▇▇▇▇▇ MARKETING GROUP LIMITED
18
▇▇▇▇▇▇ MARKETING LIMITED
PCI LIVEDESIGN LIMITED
PROPOSE TWO LIMITED
PSD ASSOCIATES LIMITED
▇▇▇▇▇▇ & FRIENDS LONDON LIMITED
SECURE TWO LIMITED
FITCH DESIGN CONSULTANTS LIMITED
SONIC SUN LIMITED
SWOT PLUS LIMITED
▇▇▇ ▇▇▇▇▇ HOLDINGS LIMITED
ULTIMATE EVENTS LIMITED
XMSS LIMITED
CHANNELEX, INC.
DRUMMER ASSOCIATES, INC.
DWP ▇▇▇▇▇ TECHNOLOGY LLC
HEATHWORLD INTERNATIONAL HOLDINGS, INC.
INTERACTIVE EDGE, INC.
MICROARTS CORPORATION
PECLERS PARIS NORTH AMERICA, INC.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
S&S MCC AND MCC, INC.
THE DECISION SHOP, INC.
THE ▇▇▇▇▇▇▇▇▇ GROUP, INC.
19
▇▇▇▇▇ GERMANY WERBEAGENTUR GMBH
CORDIANT HOLDINGS GMBH
141 GERMANY GMBH
XCEED! AGENTUR FUR MEDIANBERATUNG UND INNOVATIVE KOMMUNIKATION GMBH
CHAFMA B.V.
CORDIANT FINANCE B.V.
20
SCHEDULE 2
BANKS
ALLIED IRISH BANKS, PLC
CCF ▇▇
▇▇▇▇▇▇▇ FINANCIAL MARKETS PLC
DEUTSCHE BANK AG, LONDON
FLEET NATIONAL BANK
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.
HSBC BANK PLC
LLOYDS TSB BANK PLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
SCOTIABANK EUROPE PLC
THE BANK OF NEW YORK
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
THE ROYAL BANK OF SCOTLAND PLC
WESTLB AG
21
SCHEDULE 3
CURRENT NOTEHOLDERS
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY
PRUCO LIFE INSURANCE COMPANY
HARTFORD LIFE INSURANCE COMPANY
MASSACHUSETTS MUTUAL INSURANCE COMPANY
CERBERUS PARTNERS, L.P.
STRATEGIC VALUE PARTNERS, LLC
22
SCHEDULE 4
PART 1
SPECIFIED DEFAULTS - FACILITIES AGREEMENT
1. The breach of Clause 13.1.1 of the Facilities Agreement in so far as it
relates to the 12 month period ending 31st March, 2003;
2. The breach of Clause 13.1.2 of the Facilities Agreement in so far as it
relates to the 12 month period ending 31st March, 2003;
3. Each Event of Default pursuant to Clause 14.1.6 of the Facilities Agreement
in respect of Specified Defaults under the Amended and Restated Note
Purchase Agreement;
4. The breach of Clause 14.1.22 of the Facilities Agreement in respect of the
preliminary consolidated financial statements of the Group for the year
ending 31st December 2002;
5. The breach of Clause 12.1.6(a) of the Facilities Agreement in so far as it
relates to the non delivery by the Parent of the audited consolidated
financial statements of the Group (and the other items referred to in that
Clause) for the Financial Year ended 31st December, 2002 together with the
auditors report referred to in Clause 12.1.6(e) of the Facilities Agreement
by no later than 31st March, 2003;
6. The breach of Clause 14.1.1 of the Facilities Agreement in so far as it
relates to the failure by the Parent to pay the Deferred Fee referred to in
Clause 9.1.8 of the Facilities Agreement, prior to the amendment of such
Clause under this Agreement and without prejudice to the requirements of
paragraph 3 of Schedule 5 to this Agreement or under Clause 9.1.8 of the
Facilities Agreement, as amended by this Agreement;
7. The breach of Clause 14.1.21 of the Facilities Agreement in so far as it
relates to the notice by Allied Domecq of the termination of its contracts
with the Group; and
8. The breach of Clause 12.2.6 of the Facilities Agreement in so far as it
relates to the Couch Potato Acquisition.
23
SCHEDULE 4
PART 2
SPECIFIED DEFAULTS - AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
1. The breach of Section 10.3.1(a) of the Amended and Restated Note Purchase
Agreement in so far as it relates to the 12 month period ending 31st March,
2003;
2. The breach of Section 10.3.1(b) of the Amended and Restated Note Purchase
Agreement in so far as it relates to the 12 month period ending 31st March,
2003;
3. Each Event of Default pursuant to Section 11(f)(ii) of the Amended and
Restated Note Purchase Agreement in respect of Specified Defaults under the
Facilities Agreement;
4. The breach of Section 7.1(d)(i) of the Amended and Restated Note Purchase
Agreement in so far as it relates to the non-delivery by the Parent of the
audited financial statements of the Group (and the other items referred to
in that Section) for the Financial Year ended 31st December, 2002 together
with the auditors report referred to in Section 7.1(d)(v) of the Amended
and Restated Note Purchase Agreement by no later than 31st March, 2003; and
5. The breach of Section 10.1.6 of the Amended and Restated Note Purchase
Agreement in so far as it relates to the Couch Potato Acquisition.
24
SCHEDULE 5
CONDITIONS PRECEDENT
1. A copy of this Agreement countersigned by the Parent and each of the
Subsidiaries listed in Schedule 1.
2. Confirmation from ▇▇▇▇▇ & Overy, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP and
PricewaterhouseCoopers that they have received payment from the Parent in
respect of all professional fees and expenses incurred up to the
Commencement Date in connection with all waivers, releases, consents,
amendments and instructions under or relating to any of the Finance
Documents and all related documentation contemplated in such waivers,
releases, consents, amendments and instructions.
3. Evidence of the payment of (pound)32,448.63 to the Agent in immediately
available cleared funds in payment of the deferred fee (and interest
thereon) to the date of this Agreement under Clause 9.1.8 of the Facilities
Agreement (as amended by this Agreement) in respect of the New Money.
4. A copy of the group structure chart showing all members of the Group (and
any companies, joint venture businesses or other person in which the Parent
(or any other member of the Group) has an interest) and describing the
corporate ownership structure of the Parent's Subsidiaries including all
minority interests in such Subsidiaries, in each case as at the
Commencement Date (the Group Structure Chart) together with a
reconciliation of the differences between the Group Structure Chart and the
structure chart delivered by the Parent to the Agent in accordance with
Schedule 5 of the Restructuring Deed and delivered by the Parent to the
Noteholders in accordance with Section 4.14 of the Amended and Restated
Note Purchase Agreement.
5. Certified copies of corporate authorities in relation to each of the
Obligors.
6. Legal Opinions provided by:
(a) (to the Banks) ▇▇▇▇▇ & Overy, English legal advisers to the Banks.
(b) (to the Noteholders) Macfarlanes, English legal advisers to the Group.
(c) (to the Finance Parties) Legal advisors in each jurisdiction in which
an Obligor is incorporated or formed other than England (other than in
respect of Cordiant Australia, GPB, Microarts Corporation and
Interactive Edge Inc.).
7. An original of the Bank co-ordinator's engagement letter duly executed by
the Banks and the Obligors together with evidence of the payment of the
work fees of (pound)375,000 in aggregate due thereunder in immediately
available cleared funds.
8. An original of the Noteholder co-ordinator's engagement letter duly
executed by the Noteholders and the Obligors together with evidence of the
payment of the work fees of (pound)375,000 in aggregate due thereunder in
immediately available cleared funds for the pro rata account of the
Noteholders.
9. A copy of the revised Talbot ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP engagement letter duly
executed by the Obligors.
25
10. A copy of the Group's employee retention plan (the Employee Retention
Plan).
11. Evidence of the implementation of the Employee Retention Plan at a cost to
the Group not exceeding the cost indicated in that plan and evidence that
the Executive Incentive Plan is agreed in principle with the relevant
executives and will be implemented as soon as is practicable and consistent
with the City Code on Takeovers and Mergers at a cost to the Group not
exceeding the cost indicated in that plan.
12. A copy of the Group's key executive incentive plan (the Executive Incentive
Plan).
13. A cash budget for the Group for the period ending 15 July, 2003 together
with a commentary thereon by PricewaterhouseCoopers.
14. A formal written report on the Group's relationships and prospects with its
Key Clients, such report to be based on discussions with those Key Clients
after the announcement of the termination of the Allied Domecq contract.
26
SIGNATORIES
THE PARENT
/s/ ▇. ▇▇▇▇▇▇
...............................
CORDIANT COMMUNICATIONS GROUP PLC
THE OBLIGORS:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
CORDIANT FINANCE, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
ATLAS ADVERTISING LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
▇▇▇▇▇ EUROPE LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
▇▇▇▇▇ UK LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
HP:ICM LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
THE DECISION SHOP LIMITED
/s/ ▇▇ ▇▇▇▇▇
......................................
▇▇▇▇▇ DEUTSCHLAND HOLDINGS GMBH
27
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
▇▇▇▇▇ ADVERTISING USA, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
▇▇▇▇▇ HEALTHWORLD, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
▇▇▇▇▇ WORLDWIDE (DELAWARE), INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
BAMBER FORSYTH LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
CCG.XM, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
CORDIANT US HOLDINGS, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
▇▇▇▇ HEALTHWORLD, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
FITCH, INC.
(signed below)
......................................
141 GERMANY GMBH
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
HEALTHWORLD CORPORATION
28
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
LIGHTHOUSE GLOBAL NETWORK, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
▇▇▇▇▇▇-▇▇▇▇▇ ASSOCIATES, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
HEALTHWORLD UK LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
▇▇▇▇▇ OVERSEAS HOLDINGS LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
BULLETIN INTERNATIONAL LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
BULLETIN INTERNATIONAL UK LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
FD INTERNATIONAL LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
C&FD (HOLDINGS) LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
CCG.XM
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
CCG.XM HOLDINGS LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
CCG.XM (UK) LIMITED
29
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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CLARION COMMUNICATIONS (P.R.) LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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COLWOOD HEALTHWORLD LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
CONNECT FIVE LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
CONNECT ONE LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
CONNECT SIX LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
CORDIANT GROUP LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
CORDIANT OVERSEAS HOLDINGS LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
CORDIANT PROPERTY HOLDINGS LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
CORDIANT (US) HOLDINGS LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
CORPORATE & FINANCIAL DESIGN LIMITED
30
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
DECKCHAIR STUDIO LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
FINANCIAL DYNAMICS HOLDINGS LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
FINANCIAL DYNAMICS LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
FITCH INTERNATIONAL LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
FITCH LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
FITCH WORLDWIDE LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ HOLDINGS LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
HEADCOUNT WORLDWIDE FIELD MARKETING LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
HEALTHWORLD HOLDINGS LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
HEALTHWORLD UK HOLDINGS LIMITED
31
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
LIGHTHOUSE HOLDINGS (UK) LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
▇▇▇▇▇▇ MARKETING GROUP LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
▇▇▇▇▇▇ MARKETING LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
PCI LIVEDESIGN LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
PROPOSE TWO LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
PSD ASSOCIATES LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
▇▇▇▇▇▇ & FRIENDS LONDON LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
SECURE TWO LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
FITCH DESIGN CONSULTANTS LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
SONIC SUN LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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SWOT PLUS LIMITED
32
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
▇▇▇ ▇▇▇▇▇ HOLDINGS LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
ULTIMATE EVENTS LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
......................................
XMSS LIMITED
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
CHANNELEX, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
DRUMMER ASSOCIATES, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
DWP ▇▇▇▇▇ TECHNOLOGY LLC
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
HEATHWORLD INTERNATIONAL HOLDINGS, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
INTERACTIVE EDGE, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
MICROARTS CORPORATION
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
PECLERS PARIS NORTH AMERICA, INC.
33
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
S&S MCC AND MCC, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
THE DECISION SHOP, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
THE ▇▇▇▇▇▇▇▇▇ GROUP, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
▇▇▇▇▇ GERMANY WERBEAGENTUR GMBH
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
......................................
CORDIANT HOLDINGS GMBH
/s/ ▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
......................................
141GERMANY GMBH
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
/s/ WALTHER KAFT
......................................
XCEED! AGENTUR FUR MEDIANBERATUNG UND INNOVATIVE KOMMUNIKATION GMBH
/s/ ▇. ▇▇▇▇▇▇
......................................
CHAFMA B.V.
/s/ ▇. ▇▇▇▇▇▇
......................................
CORDIANT FINANCE B.V.
34
THE BANKS
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
...............................
ALLIED IRISH BANKS, PLC
/s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇
...............................
CCF
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
...............................
CARGILL FINANCIAL MARKETS PLC
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
...............................
DEUTSCHE BANK AG, LONDON
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
...............................
FLEET NATIONAL BANK
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
...............................
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.
/s/ ▇▇▇▇ ▇▇▇
...............................
HSBC BANK PLC
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
...............................
LLOYDS TSB BANK PLC
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
...............................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
...............................
SCOTIABANK EUROPE PLC
35
/s/ ▇▇▇▇▇ ▇▇▇▇
...............................
THE BANK OF NEW YORK
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
...............................
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
/s/ ▇▇▇ ▇▇▇▇▇▇▇
...............................
THE ROYAL BANK OF SCOTLAND PLC
/s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
...............................
WESTLB AG
THE NOTEHOLDERS
/s/ [Authorized Signature]
...............................
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
/s/ [Authorized Signature]
...............................
PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY
/s/ [Authorized Signature]
...............................
PRUCO LIFE INSURANCE COMPANY
/s/ [Authorized Signature]
...............................
HARTFORD LIFE INSURANCE COMPANY
By: Prudential Private Placement Investors, L.P.
(as Investment Advisor)
By: Prudential Private Placement Investors, Inc.
(as its General Partner)
/s/ [Authorized Signature]
...............................
MASSACHUSETTS MUTUAL INSURANCE COMPANY
36
/s/ [Authorized Signature]
...............................
CERBERUS PARTNERS, L.P.
By: Cerberus Associates, LLC,
Its General Partner
/s/ [Authorized Signature]
...............................
STRATEGIC VALUE PARTNERS, LLC
THE AGENT, SECURITY TRUSTEE AND THE COMMON SECURITY TRUSTEE
/s/ ▇▇▇▇▇▇ ▇▇▇▇
...............................
HSBC BANK PLC
37