EXHIBIT 4.4
DEBT TRANSFER AGREEMENT
DATED 19th June, 2003
BETWEEN
Cordiant Communications Group plc
as the Company
-and-
Cordiant Finance, Inc.
as the Note Issuer
-and-
The parties listed in Schedule 1
as Transferring Finance Parties
-and-
HSBC Bank plc
as Common Security Trustee
-and-
HSBC Bank plc
as Paying Agent
-and-
WPP No. 2337 Limited
as Purchaser
-and-
WPP Group plc
as Guarantor
ALLEN & OVERY
London
CONTENTS
Clause Page
1. Interpretation......................................................1
2. Transfer Agreement..................................................5
3. Payment.............................................................7
4. Release.............................................................8
5. Overdraft Facility and Swingline Facility...........................8
6. Co-operation........................................................9
7. Common Security Trustee, Security Trustee and Agent................10
8. Confidentiality....................................................11
9. Transferring Finance Party representations.........................12
10. Guarantor/Purchaser Representations................................13
11. Changes to the Parties.............................................14
12. Default interest...................................................14
13. VAT................................................................15
14. Paying Agent.......................................................15
15. Guarantee and indemnity............................................18
16. Miscellaneous......................................................20
17. Notices............................................................22
18. Language...........................................................23
19. Severability.......................................................23
20. Waivers and remedies cumulative....................................23
21. Counterparts.......................................................23
22. Governing law......................................................24
23. Enforcement........................................................24
Schedule
1. Transferring Finance Parties.......................................25
2. Form of Substitution Certificate...................................27
3. Account Details....................................................36
4. Form of Accession Letter...........................................37
5.
Signatories.................................................................52
THIS DEBT TRANSFER AGREEMENT is dated 19th June, 2003 between:
(1) Cordiant Communications Group plc (registered number 1320869) (the
Company);
(2) Cordiant Finance, Inc (the Note Issuer) as issuer of the Notes under the
Note Purchase Agreement;
(3) The parties listed in Part 1 of Schedule 1 (Transferring Finance
Parties) as transferring noteholders (each a Transferring Noteholder);
(4) The parties listed in Part 2 of Schedule 1 (Transferring Finance
Parties) as transferring banks (each a Transferring Bank);
(5) HSBC Bank plc as common security trustee for the Finance Parties (in
this capacity the Common Security Trustee);
(6) HSBC Bank plc as agent and security trustee under the Credit Agreement
(in this capacity, the Agent or the Security Trustee);
(7) HSBC Bank plc as overdraft bank under the Credit Agreement (in this
capacity, the Original Overdraft Bank);
(8) Fleet National Bank as swingline bank under the Credit Agreement (in
this capacity, the Original Swingline Bank);
(9) HSBC BANK PLC as paying agent (in this capacity, the Paying Agent);
(10) WPP NO. 2337 LIMITED (registered number 4679453) (the Purchaser); and
(11) WPP Group plc (registered number 1003653) (the Guarantor).
1. INTERPRETATION
1.1 Definitions
In this Agreement:
Bank Debt means the Debt owed to the Transferring Banks.
Bank Finance Documents has the meaning given to it in the Credit
Agreement.
Business Day means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and New York City.
Common Security Trust Deed means the trust deed dated 19th April, 2002
between amongst others, the Company, the holders of the Notes set out in
Part B of Schedule 3 thereto, the Common Security Trustee and the Agent.
Completion Date means 20th June, 2003.
Consideration means the Total Principal Debt plus the Interest
Component.
Contribution has the meaning given to the term in the Credit Agreement.
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Co-ordinators' Engagement Letters means the Bank Co-ordinators'
Engagement Letter and the Noteholders Co-ordinators' Engagement Letter,
relating to the Finance Documents and each dated 15th May, 2003.
Credit Agreement means the (pounds)155,871,146.52 credit agreement dated
4th July, 2000 between (among others) the Company and HSBC Bank plc (as
amended and restated pursuant to a restructuring deed dated 19th April,
2002).
Creditor has the meaning given to that term in the Intercreditor
Agreement.
Debt means all Liabilities payable or owing by any member of the Group
to the Transferring Finance Parties under or in connection with any
Finance Document.
Exchange Rate means the Paying Agent's spot rate of exchange for the
purchase of the relevant currency in the London foreign exchange market
with another currency at or about 11.00 a.m. on a particular day.
Finance Document means a Bank Finance Document or a Note Finance
Document.
Finance Party has the meaning given to that term in the Credit
Agreement.
Group means the Company and its Subsidiaries.
Intercreditor Agreement has the meaning given to that term in the Credit
Agreement.
Interest Component means the amount referred to in Clause 3.4(a)(i)
(Application of the Consideration).
Liability means any present or future liability (actual or contingent),
together with:
(a) any further advance which may be made under any agreement
expressed to be supplemental to any document in respect of that
liability, together with all related interest, fees and costs;
(b) any claim for damages or restitution in the event of rescission
of that liability or otherwise; and
(c) any claim flowing from any recovery by a payment or discharge in
respect of that liability on grounds of preference or otherwise.
Note Purchase Agreement means the Amended and Restated Note Purchase
Agreement dated as of April 19, 2002, among the Note Issuer, as issuer,
the Company, as parent guarantor and the holders of the Notes party
thereto.
Noteholder Debt means Debt owed to the Transferring Noteholders.
Notes has the meaning given to it in the Note Purchase Agreement.
Notes Finance Documents means the "Finance Documents" as defined in the
Note Purchase Agreement.
Obligor means any member of the Group which is a party to a Finance
Document.
Overdraft Bank has the meaning given to that term in the Credit
Agreement.
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Overdraft Facility has the meaning given to that term in the Credit
Agreement.
Overdraft Net Balance is defined in Clause 3.4 (Application of the
Consideration).
Party means a party to this Agreement.
PIK Management Fee has the meaning given to that term in the Note
Purchase Agreement.
Principal Debt with respect to a Transferring Finance Party means the
principal amount of indebtedness owed to that Transferring Finance Party
under the Credit Agreement as at the Completion Date or the principal
amount of indebtedness owed to that Transferring Finance Party in
respect of the Notes and the Note Purchase Agreement as at the
Completion Date, as applicable, in each case excluding:
(a) accrued or capitalised interest (if any);
(b) any fees, costs or expenses;
(c) any penalty, liquidated damages, prepayment or make-whole
amounts; or
(d) any other amount which is not in the nature of principal,
but, in the case of a Transferring Bank, including that Transferring
Bank's share of the Overdraft Net Balance and the counter-indemnity
obligations in respect of the principal amount of any outstanding
Swingline Letters of Credit (as defined in the Credit Agreement)) as at
the Completion Date, being in all cases the indicative amount for such
Transferring Finance Party set out opposite its name in Schedule 1
(Transferring Finance Parties) as at 16th June, 2003 (assuming an
Overdraft Net Balance of zero), as updated by the Agent by the delivery
of a Replacement Schedule.
Receiving Account means the account details for the Paying Agent as set
out in Schedule 3 (Account Details).
Replacement Schedule is defined in Clause 2.2(d) (Completion).
Security Trust Deed has the meaning given to that term in the Credit
Agreement.
Steering Committee means the committee appointed by the Finance Parties
to represent their interests in connection with the repaying of the
Debt.
Swingline Bank has the meaning give to that term in the Credit
Agreement.
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 includes a
subsidiary undertaking within the meaning of section 258 of the
Companies Act 1985.
Substitution Certificate means a global certificate in substantially the
form of Schedule 2 (Form of Substitution Certificate). The Substitution
Certificate is a "Substitution Certificate" for the purposes of the
Credit Agreement.
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Total Principal Debt means the aggregate of the Principal Debt for all
of the Transferring Finance Parties, being the aggregate of the
indicative amounts set out in Schedule 1 (Transferring Finance Parties)
as at 16th June, 2003 (assuming an Overdraft Net Balance of zero), as
updated by the Agent by delivery of a Replacement Schedule.
Transfer means the transfer and novation of the Debt by the Transferring
Finance Parties to the Purchaser in accordance with this Agreement, the
Transfer Documents and the Finance Documents.
Transfer Documents means:
(a) the relevant accession deeds to the Common Security Trust Deed,
the Intercreditor Agreement and the Security Trust Deed for the
Purchaser to accede as the relevant finance parties under those
agreements, in substantially the form set out in the Common
Security Trust Deed and the Security Trust Deed; and
(b) the Substitution Certificate.
Transferring Finance Party means a Transferring Noteholder or a
Transferring Bank.
1.2 Construction
(a) In this Agreement, unless the contrary intention appears, a reference to:
(i) an amendment includes a supplement, novation, restatement or
re-enactment and amended will be construed accordingly;
(ii) assets includes present and future properties, revenues and
rights (including contractual rights) of every description;
(iii) an authorisation includes an authorisation, consent, approval,
resolution, licence, exemption, filing, registration or
notarisation;
(iv) disposal means a sale, transfer, grant, lease or other disposal,
whether voluntary or involuntary, and dispose will be construed
accordingly;
(v) indebtedness includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money;
(vi) a person includes any individual, company, limited liability
company, corporation, unincorporated association or body
(including a partnership, limited partnership, trust, joint
venture or consortium), government, state, agency, organisation
or other entity whether or not having separate legal
personality;
(vii) a regulation includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law
but, if not having the force of law, being of a type with which
any person to which it applies is accustomed to comply) of any
governmental, inter-governmental or supranational body, agency,
department or regulatory, self-regulatory or other authority or
organisation;
(viii) a currency is a reference to the lawful currency for the time
being of the relevant country;
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(ix) a provision of law is a reference to that provision as extended,
applied, amended or re-enacted and includes any subordinate
legislation;
(x) a Clause, a Subclause, paragraph, sub-paragraph or a Schedule is
a reference to a clause, subclause, paragraph or sub-paragraph
of, or a schedule to, this Agreement;
(xi) a Party or any other person includes its successors in title,
permitted assigns and permitted transferees, except that a
reference to the Paying Agent or the Common Security Trustee in
Clauses 3 (Payment), 6 (Co-operation)and 7 (Common Security
Trustee, Security Trustee and Agent) shall in any event be to
HSBC Bank plc;
(xii) a Finance Document, this Agreement or another document is a
reference to that Finance Document, this Agreement or other
document as amended; and
(xiii) a time of day is a reference to London time.
(b) Unless expressly provided to the contrary in this Agreement, a person
who is not a party to this Agreement may not enforce any of its terms
under the Contracts (Rights of Third Parties) Act 1999 and,
notwithstanding any term of this Agreement, no consent of any third
party is required for any variation (including any release or compromise
of any liability) or termination of this Agreement.
(c) Unless the contrary intention appears a reference to a Party will not
include that Party if it has ceased to be a Party under this Agreement.
(d) The headings in this Agreement do not affect its interpretation.
2. TRANSFER AGREEMENT
2.1 Agreement
(a) Each Transferring Finance Party hereby agrees to sell and the Purchaser
hereby agrees to purchase on the Completion Date all (but not part only,
except in the case of Deutsche Bank AG, London Branch as a Transferring
Bank, which hereby agrees to sell only that part of its participation in
the Debt referred in Schedule 1 (Transferring Finance Parties)) of that
Transferring Finance Party's participation in all of the Debt in
consideration of the Purchaser's payment to the Transferring Finance
Parties of the Consideration.
(b) This Agreement is effective on the date of this Agreement.
(c) Completion of the Transfer and payment of the Consideration under this
Agreement shall take place on the Completion Date in accordance with
Clause 2.2 (Completion).
2.2 Completion
(a) On the Completion Date:
(i) each Transferring Bank shall deliver to the Purchaser the
Substitution Certificate in respect of its entire participation
in the Debt, duly executed by it;
(ii) each Transferring Noteholder shall sell, assign and transfer to
the Purchaser each Note held by it and this Agreement shall
effect such sale, assignment and transfer (notwithstanding any
of the provisions set out in section 15.2 (Transfer and
5
Exchange of Notes) of the Note Purchase Agreement) with
immediate effect on the Completion Date without more;
(iii) the Purchaser shall pay the Consideration to the Paying Agent
for the Transferring Finance Parties for distribution in
accordance with Clause 3.4 (Application of the Consideration);
(iv) the Purchaser will execute the Transfer Documents, to take
effect on the Completion Date;
(v) the Note Issuer shall issue a replacement Note in favour of the
Purchaser and register the Purchaser as the holder of such Note
pursuant to section 15.1 (Registration of Notes) of the Note
Purchase Agreement;
(vi) the Purchaser shall pay (on behalf of the Company and in
consideration for the mutual covenants contained herein) any
amounts owing (whether or not yet due) to any Transferring
Finance Party under the Co-ordinator's Engagement Letters as at
the Completion Date; and
(vii) the Purchaser shall pay (on behalf of the Note Issuer and in
consideration for the mutual covenants contained herein) to the
Paying Agent for the Transferring Noteholders on a pro rata
basis (pounds) 250,000 pounds in aggregate in full satisfaction
of any unpaid PIK Management Fee owing to the Transferring
Noteholders.
Each of the actions described above shall occur simultaneously on the
Completion Date.
(b) As soon as reasonably practicable after the Completion Date (and in any
event not more than 10 Business Days after the Completion Date or such
longer period as agreed by the Purchaser), each Transferring Noteholder
shall surrender to the Purchaser each original Note held by it.
(c) On the Completion Date the Company will pay or procure that the Obligors
pay (and to the extent that the Company or the Obligors fail to pay, the
Guarantor will pay) to the Paying Agent all amounts owing to the
Transferring Finance Parties (or any of them) under the Finance
Documents as at the Completion Date:
(i) in respect of all expenses payable thereunder;
(ii) in respect of accrued Swingline Bank fees, Overdraft Bank fees,
commitment fees, Agent's fees and Common Security Trustee's fees
to the Completion Date; and
(iii) pursuant to Clause 16.5 (Costs and expenses) (other than fees
owing under the Co-ordinator's Engagement Letters).
(d) The Agent shall provide to the Purchaser an updated replacement Schedule
1 (Transferring Finance Parties) (the Replacement Schedule) no later
than 12 Noon on the Completion Date reflecting:
(i) fluctuations in the Overdraft Net Balance as at close of
business on the Business Day before the Completion Date; and
(ii) transfers and novations of the Debt by Transferring Finance
Parties taking effect on or prior to the Completion Date in
accordance with Clause 11 (Changes to the Parties).
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3. PAYMENT
3.1 Place
All payments by the Company, the Purchaser or the Guarantor under this
Agreement shall be made to the Receiving Account. All amounts paid into
the Receiving Account shall be promptly distributed by the Paying Agent
in accordance with this Agreement.
3.2 Funds
Payments under this Agreement shall be made in the currency in which the
amount is denominated for value on the due date at such times and in
such funds as are customary at the time for settlement of transactions
in that currency in the place of payment.
3.3 Use of Consideration
(a) A payment of any amount by the Company, the Purchaser or the Guarantor
to the Paying Agent shall be a good discharge of the obligation to pay
that amount to the Transferring Finance Parties.
(b) Neither the Purchaser nor the Guarantor shall have any obligation to
monitor or verify the application of such amounts by the Paying Agent
including, without limitation, any payments made in accordance with
Clause 3.4 (Application of the Consideration) or Clause 5.1(a)
(Overdraft Facility).
3.4 Application of the Consideration
(a) The Paying Agent will apply the Consideration received by it as follows:
(i) to each Transferring Finance Party the amount of accrued
interest under the Finance Documents owing to such Transferring
Finance Party as at the Completion Date;
(ii) in payment to:
(A) if Clause 5.1(c) (Overdraft Facility) does not apply,
the Overdraft Bank of an amount equal to the overdraft
outstandings following the reduction pursuant to Clause
5.1(a) (Overdraft Facility) (the Overdraft Net Balance);
and
(B) the Swingline Bank of an amount equal to the aggregate
principal amount of all outstanding Swingline Letters of
Credit issued by it (for this purpose converted by the
Paying Agent into sterling at the Exchange Rate on the
Completion Date) and (without double counting) any
amounts in respect of which it is entitled to an
indemnity from the Obligors in respect of any Swingline
Letters of Credit issued by it under which demand has
been made on or prior to the Completion Date by the
beneficiary thereof (for this purpose converted by the
Paying Agent into sterling at the Exchange Rate on the
Completion Date) (the amounts referred to in this
sub-paragraph (B) the Swingline Amount);
(iii) in payment to the Transferring Finance Parties in respect of
their Principal Debt; for this purpose:
7
(A) in the case of the Transferring Banks, the Swingline
Amount and, if Clause 5.1(c) (Overdraft Facility) does
not apply, the Overdraft Net Balance), shall each be
excluded; and
(B) the Noteholder Debt will be notionally converted to
sterling by the Paying Agent at the Exchange Rate on the
Completion Date.
(b) Payments by the Paying Agent to the Transferring Noteholders will be
converted into U.S. dollars by the Paying Agent at the Exchange Rate on
the Completion Date.
4. RELEASE
(a) Each Party agrees that, on completion occurring in accordance with
Clause 2.2 (Completion):
(i) subject to Clause 5.1(c) (Overdraft Facility), the Purchaser
will assume all of the rights and obligations of the
Transferring Finance Parties in respect of the Debt in
substitution for the Transferring Finance Parties, and the
Transferring Finance Parties will be released from those
obligations and shall cease to have any of those rights; and
(ii) the Transferring Finance Parties, the Company and the Note
Issuer waive any consents, authorisations or formalities
otherwise required under the Finance Documents in connection
with the Transfer;
(iii) the Company confirms each Obligor's authority to the Agent to
execute the Substitution Certificate; and
(iv) no Obligor shall have any liability to any Transferring Finance
Party and no Transferring Finance Party shall have any right,
claim or action against an Obligor in connection with the
Finance Documents.
(b) Each Party agrees that no Transferring Finance Party shall be
responsible or have any liability to the Purchaser or any other person
if any of the rights, claims, guarantees or security under or
constituted by the Finance Documents is damaged, impaired, vitiated,
discharged or otherwise affected by reason of anything in, or anything
contemplated by, this Agreement or the transactions contemplated by this
Agreement.
5. OVERDRAFT FACILITY AND SWINGLINE FACILITY
5.1 Overdraft Facility
(a) Subject to paragraph (c) below, on the Completion Date, the Original
Overdraft Bank shall exercise its rights of set-off (and, to the extent
necessary, enforce any guarantees given to the Original Overdraft Bank)
to reduce the overdraft outstandings (if any) to their net amount on
that date.
(b) Immediately following the reduction under paragraph (a) above on the
Completion Date (and without any further action by any other person):
(i) with the consent of the Company (as "Parent" under the Credit
Agreement), as evidenced by the Company's execution of this
Agreement, the Original Overdraft Bank shall resign from its
appointment as Overdraft Bank under the Credit Agreement;
8
(ii) the Original Overdraft Bank shall be released from its
obligations under the Credit Agreement;
(iii) the Purchaser shall be appointed by the Company (as "Parent"
under the Credit Agreement) as successor Overdraft Bank under
the Credit Agreement; and
(iv) the Original Overdraft Bank shall assign its rights as Overdraft
Bank under the Credit Agreement and the other Finance Documents
to the Purchaser and the Purchaser shall assume the rights and
obligations of the Original Overdraft Bank as Overdraft Bank
under the Credit Agreement.
(c) If requested by the Company, on the Completion Date the Purchaser will
place (pound) 6,000,000 with the Original Overdraft Bank (together with
documentation reasonably acceptable to the Original Overdraft Bank) as
cash collateral for the Overdraft Facility or make such other
alternative arrangements as the Original Overdraft Bank agrees with the
Purchaser, and in each case paragraphs (a) and (b) above will not apply,
the Overdraft Net Balance will be deemed to be nil, no balance relating
to the Overdraft Facility or any account relating to the Overdraft
Facility shall be assigned or transferred and the Original Overdraft
Bank will continue the Overdraft Facility for up to 75 days on a demand
basis pending replacement arrangements acceptable to the Original
Overdraft Bank being put in place.
5.2 Swingline Bank
On the Completion Date (and without any further action by any other
person):
(a) with the consent of the Company (as "Parent" under the Credit
Agreement), as evidenced by the Company's execution of this
Agreement, the Original Swingline Bank shall resign from its
appointment as Swingline Bank under the Credit Agreement;
(b) the Original Swingline Bank shall be released from its
obligations under the Credit Agreement;
(c) the Purchaser shall be appointed by the Company (as "Parent"
under the Credit Agreement) as successor Swingline Bank under
the Credit Agreement; and
(d) the Original Swingline Bank shall assign its rights as Swingline
Bank under the Credit Agreement and the other Finance Documents
to the Purchaser and the Purchaser shall assume the rights and
obligations of the Original Swingline Bank as Swingline Bank
under the Credit Agreement.
6. CO-OPERATION
(a) The Transferring Finance Parties shall, at the expense of the Purchaser,
take whatever action the Purchaser may reasonably require for
facilitating the Transfer under this Agreement for a period of 30 days
following the Completion Date (or such later date as the Transferring
Finance Parties and the Purchaser agree), including without limitation
the execution of any transfer, conveyance and assignment and the giving
or making of any notice, order, direction or registration. The
Transferring Finance Parties shall not be obliged to incur any material
expense under this paragraph (a) unless they are secured or payment is
otherwise assured, in each case to their satisfaction.
(b) The Purchaser shall, at its expense, take whatever action the
Transferring Finance Parties may reasonably require for facilitating the
Transfer under this Agreement following
9
the Completion Date, including the execution of any transfer, conveyance
and assignment and the giving or making of any notice, order, direction
or registration.
(c) The Common Security Trustee shall deliver to the Purchaser within 15
Business Days of the date of this Agreement an executed, certified or
conformed copy of each Finance Document (other than lease approvals or
any Finance Documents which are no longer in force).
7. COMMON SECURITY TRUSTEE, SECURITY TRUSTEE AND AGENT
7.1 Common Security Trustee
(a) To the extent that the Common Security Trustee is not reimbursed by the
Purchaser pursuant to the indemnity applicable to it in clause 6.8 of
the Common Security Trust Deed in respect of the Purchaser's pro rata
share of all or any liabilities, damages, costs, claims, reasonable
charges or expenses referred to in clause 6.3 of the Common Security
Trust Deed (that pro rata share of the Purchaser being the Reimbursable
Liabilities) the Guarantor will indemnify the Common Security Trustee on
demand for those Reimbursable Liabilities.
(b) To the extent that the Common Security Trustee is not reimbursed by the
Purchaser in respect of the Reimbursable Liabilities (the Shortfall)
each of the Transferring Finance Parties will indemnify the Common
Security Trustee on demand for its share (as determined in accordance
with paragraph (c) below) of the Shortfall.
(c) For the purposes of this Clause, a Transferring Finance Party's share of
any of the Shortfall is the proportion which that Transferring Finance
Party's participation in the Bank Debt or the Noteholder Debt (as the
case may be) immediately before the Transfer bore to the aggregate of
the Bank Debt and the Noteholder Debt being transferred under this
Agreement.
7.2 Security Trustee
(a) To the extent that the Security Trustee is not reimbursed by the
Purchaser pursuant to the indemnity in clause 19.12 of the Credit
Agreement in respect of the Purchaser's pro rata share of all costs,
charges and expenses referred to in clause 19.12 of the Credit Agreement
(that pro rata share of the Purchaser being the ST Reimbursable
Liabilities) the Guarantor will indemnify the Security Trustee on demand
for those ST Reimbursable Liabilities.
(b) To the extent that the Security Trustee is not reimbursed by the
Purchaser in respect of all or any of the ST Reimbursable Liabilities
(the ST Shortfall) each of the Transferring Banks will indemnify the
Security Trustee on demand for its share (as determined in accordance
with paragraph (c) below) of the ST Shortfall.
(c) For the purposes of this Clause, a Transferring Bank's share of any of
the ST Shortfall is the proportion which that Transferring Bank's
participation in the Bank Debt immediately before the Transfer bore to
the aggregate of the Bank Debt and the Noteholder Debt being transferred
under this Agreement.
7.3 Agent, Common Security Trustee and Security Trustee
Each of the Company (on behalf of itself and the Obligors) and the
Purchaser and the Guarantor hereby:
(a) acknowledges that it is the intention of HSBC Bank plc to retire
from its appointment as Agent, Common Security Trustee and
Security Trustee under the Finance
10
Documents as soon as possible after the date of this Agreement,
unless HSBC Bank plc subsequently agrees to retain its
appointment following a request by the Purchaser; and
(b) agrees that it will do all things reasonably requested by HSBC
Bank plc (including the execution of amendments to the Finance
Documents) to facilitate such resignation.
8. CONFIDENTIALITY
(a) Each Party must keep confidential this Agreement and the transactions
contemplated by it. However, a Party is entitled to disclose
information:
(i) which is or becomes publicly available, other than as a result
of a breach by that Party of this Clause;
(ii) to any person to which such delivery or disclosure may be
necessary or appropriate (A) to effect compliance with any law
or regulation applicable to such Party, or (B) in response to
any subpoena or other legal process, or (C) in connection with
any litigation to which it is a party;
(iii) if required to do so under any applicable law or regulation
(including any request by the Panel or the Listing Rules of the
UK Listing Authority);
(iv) to a governmental, banking, taxation or other regulatory
authority;
(v) to the extent allowed under paragraph (c) below;
(vi) which relates to the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of
any kind relating to such tax treatment and tax structure;
(vii) to its directors, officers, trustees, employees, agents,
attorneys and affiliates (whose duties require them to maintain
the confidentiality of such information);
(viii) to its financial advisors and other professional advisers who
agree, or whose duties require them, to hold confidential such
information substantially in accordance with the terms of this
Clause 8;
(ix) the National Association of Insurance Commissioners or any
similar organisation, or any recognised rating agency that
requires access to information about a Transferring Finance
Party's investment portfolio;
(x) any Institutional Investor (as defined in the Note Purchase
Agreement) to which a Transferring Noteholder sells or offers to
sell Notes or any part thereof or any participation therein
provided such Institutional Investor agrees in writing to be
bound by the terms of this Clause 8; or
(xi) any person from which such Transferring Noteholder offers to
purchase any security of the Note Issuer or the Company provided
such person agrees in writing to be bound by the terms of this
Clause 8.
(b) In connection with the foregoing, any Person shall be free to consult
any tax advisor regarding the tax treatment or tax structure of the
transactions. For the purposes of this
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Clause 8, the tax treatment of the transactions is the purported or
claimed U.S. Federal income tax treatment of the transaction, and the
tax structure of the transaction is any fact that may be relevant to
understanding the purported or claimed U.S. federal income tax treatment
of the transactions. Person for the purposes of this paragraph (b)
includes any employee, representative, or other agent of any Party to
this Agreement.
(c) A Party may disclose to an affiliate a copy of this Agreement and any
information which it has acquired under or in connection with this
Agreement.
9. TRANSFERRING FINANCE PARTY REPRESENTATIONS
9.1 Representations
The representations set out in this Clause are made by each Transferring
Finance Party (on a several basis) to the Purchaser and to each other
Transferring Finance Party on the date of this Agreement and the
Completion Date.
9.2 Status
It is duly incorporated or organised as the case may be and validly
existing (and in the case of a corporation incorporated in the United
States, in good standing) under the laws of the jurisdiction of its
incorporation or organisation.
9.3 Powers and authorities
It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into and performance of, this Agreement
and the Transfer Documents to which it is a party and the transactions
contemplated by this Agreement.
9.4 Legal validity
This Agreement and the Transfer Documents to which it is a party each
constitutes (or will, when executed, constitute) its legally valid,
binding and enforceable obligation (subject to applicable bankruptcy,
reorganisation, insolvency moratorium or similar laws affecting
creditors' rights generally and subject, as to enforceability, to
equitable principles of general application).
9.5 Non-conflict
The entry into and performance by it of, and the transactions
contemplated by, this Agreement and the Transfer Documents to which it
is a party do not and will not conflict in any material respect with:
(a) any law or regulation applicable to it; or
(b) its constitutional documents.
9.6 Authorisations
All authorisations required by it in connection with the entry into,
performance, validity and enforceability of, and the transactions
contemplated by, this Agreement and the Transfer Documents to which it
is a party have been obtained or effected (as appropriate) and are in
full force and effect.
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9.7 Debt
(a) It is the sole legal and beneficial owner of its participation in the
Bank Debt or, as applicable, the sole owner and holder of its Notes and
in each case the corresponding benefits under the Finance Documents free
from any security interest, option or subordination in favour of any
person other than the Purchaser (except in relation to any
sub-contracting or sub-participating of its participation, where the
relevant Transferring Finance Party is and remains liable under the
Finance Documents for its obligations);
(b) (except in the case of the Overdraft Bank as permitted by Clause 5.1(a)
(Overdraft Facility)) it has not exercised any right of any set-off,
counterclaim or other defence which it may have in respect of its
participation in the Debt; and
(c) as at 16th June, 2003 its relevant ownership and participations in the
principal amount of the Bank Debt (assuming an Overdraft Net Balance of
zero) (in the case of Deutsche Bank AG, London Branch as a Transferring
Bank limited to that portion being transferred pursuant to Clause 2.1(a)
(Agreement)) and the Notes is as set out in Schedule 1 (Finance Parties)
and as at the Completion Date such relevant ownership and participations
in the principal amount of the Bank Debt and the Notes is as set out in
the Replacement Schedule.
10. GUARANTOR/PURCHASER REPRESENTATIONS
The representations set out in this clause are made by each of the
Guarantor and the Purchaser to the Transferring Finance Parties on the
date of this Agreement and the Completion Date.
10.1 Status
It is a limited liability company, duly incorporated and validly
existing under the laws of the jurisdiction of its incorporation.
10.2 Powers and authorities
It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into and performance of, this Agreement
and the Transfer Documents to which it is a party and the transactions
contemplated by this Agreement.
10.3 Legal validity
This Agreement and the Transfer Documents to which it is a party each
constitutes its legally valid, binding and enforceable obligation.
10.4 Non-conflict
The entry into and performance by it of, and the transactions
contemplated by, this Agreement and the Transfer Documents to which it
is a party do not and will not conflict with:
(a) any law or regulation applicable to it; or
(b) its constitutional documents.
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10.5 Authorisations
All authorisations required by it in connection with the entry into,
performance, validity and enforceability of, and the transactions
contemplated by, this Agreement and the Transfer Documents to which it
is a party have been obtained or effected (as appropriate) and are in
full force and effect.
10.6 Securities Act
(a) The Purchaser is purchasing the Notes as principal for its own account,
for investment purposes only and not with a view to any resale or
distribution thereof. The Purchaser understands that no liquid market
exists for the Notes and the Purchaser acknowledges that the Purchaser
is financially capable of bearing the potential risks associated with
holding its investment in the Notes for an indefinite period of time.
(b) The Purchaser has received copies of each of the Note Finance Documents,
has reviewed the Note Finance Documents and is, except as provided
herein, acquiring the Notes in accordance and in compliance with the
procedural requirements set out in section 15 (Registration; Exchange;
Substitution of Notes) of the Note Purchase Agreement, clause 9.6
(Transfer by the Noteholders) of the Common Security Trust Deed and
clause 9.1 (Transfer and Termination) of the Intercreditor Agreement in
connection with its acquisition of the Notes.
(c) The Purchaser understands that the Notes have not been and will not be
registered under the United States Securities Act of 1933, as amended
(the Securities Act), are being sold in a transaction exempt from the
registration requirements of the Securities Act, are "restricted
securities" as defined by Rule 144(a)(3) under the Securities Act, and
may not be reoffered or resold in a transaction to which the Securities
Act applies, except pursuant to registration under, or an exemption from
the registration requirements of, the Securities Act.
10.7 Reliance
(a) In respect of the Purchaser only, it has such knowledge,
sophistication and experience in financial and business matters
as to be capable of evaluating the merits and risks of its
investment in the Notes.
(b) It is able to bear the economic risk of an investment in the
Notes, has adequate means to provide for its current and
contingent needs, has no need for liquidity with respect to an
investment in the Notes, and can afford a complete loss of such
investment.
11. CHANGES TO THE PARTIES
No Party may assign or transfer any of its rights or obligations under
this Agreement unless, in the case of the Transferring Finance Parties
only, the transferee agrees to be bound by the terms of this Agreement
by execution of an accession letter in the form attached as Schedule 4
(Form of Accession Letter).
12. DEFAULT INTEREST
(a) If a Party fails to pay any amount payable by it under this Agreement to
another Party, (the non-defaulting Party) it must, on demand by the
non-defaulting Party, pay interest on the overdue amount from the due
date up to the date of actual payment, as well after as before judgment.
14
(b) Interest on an overdue amount is payable at a rate equal to the
aggregate of:
(i) one per cent. per annum; and
(ii) the rate quoted in the London interbank market on the relevant
rate fixing day for the offering of deposits in the currency of
the overdue amount during the period of non-payment, as shown on
the appropriate Telerate page.
(c) For the purpose of determining the relevant rate under sub-paragraph
(b)(ii) above, the non-defaulting Party may (acting reasonably):
(i) select successive periods of any duration of up to three months;
and
(ii) determine the appropriate rate fixing day for that period.
(d) Interest (if unpaid) on an overdue amount will be compounded at the end
of each period selected by the non-defaulting Party under paragraph (c)
above but will remain immediately due and payable.
(e) Any interest accruing under this Subclause accrues from day to day and
is calculated on the basis of the actual number of days elapsed and a
year of 360 or 365 days or otherwise, depending on what the
non-defaulting Party determines is market practice.
(f) For the avoidance of doubt, to the extent any Finance Document contains
a default interest in respect of an amount referred to in this
Agreement, that provision will apply in place of this in respect of
payments under those Finance Documents.
13. VAT
(a) Any amount payable under this Agreement by a Party is exclusive of any
value added tax or any other tax of a similar nature which might be
chargeable in connection with that amount. If any such value added tax
is chargeable, that Party must pay (in addition to and at the same time
as paying that amount) an amount equal to the amount of that value added
tax.
(b) The obligation of any Party under paragraph (a) above will be reduced to
the extent that the recipient determines (acting reasonably) that it is
entitled to repayment or a credit in respect of the relevant value added
tax.
14. PAYING AGENT
14.1 Appointment and duties of the Paying Agent
(a) Each Transferring Finance Party irrevocably appoints the Paying Agent to
act as its agent under this Agreement.
(b) Each Transferring Finance Party irrevocably authorises the Paying Agent
to perform the duties and to exercise the rights, powers and discretions
that are specifically given to it under the Finance Documents, together
with any other incidental rights, powers and discretions; and
(c) The Paying Agent has only those limited duties which are expressly
specified in this Agreement. Those duties are solely of a mechanical and
administrative nature. Those duties are expected to have come to an end
after Clause 3.4 (Application of the Consideration) has been complied
with.
15
14.2 No fiduciary duties
Except as specifically provided in this Agreement:
(a) nothing in this Agreement makes the Paying Agent a trustee or
fiduciary for any other Party or any other person; and
(b) the Paying Agent need not hold in trust any moneys paid to it
for a Party or be liable to account for interest on those
moneys.
14.3 Individual position of the Paying Agent
If it is also a Transferring Finance Party, the Paying Agent has the
same rights and powers under this Agreement as any other Transferring
Finance Party and may exercise those rights and powers as though it were
not the Paying Agent.
14.4 Reliance
The Paying Agent may:
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of,
the proper person;
(b) rely on any statement made by any person regarding any matters
which may reasonably be assumed to be within his knowledge or
within his power to verify;
(c) engage, pay for and rely on professional advisers selected by it
(including those representing a Party other than the Paying
Agent); and
(d) act under the Finance Documents through its personnel and
agents.
14.5 Transferring Finance Parties' instructions
(a) The Paying Agent is fully protected if it acts on the instructions of
the Transferring Finance Parties in the exercise of any right, power or
discretion or any matter not expressly provided for in this Agreement.
In the absence of instructions, the Paying Agent may act as it considers
to be in the best interests of all the Transferring Finance Parties.
(b) The Paying Agent is not authorised to act on behalf of a Transferring
Finance Party (without first obtaining that Transferring Finance Party's
consent) in any legal or arbitration proceedings in connection with this
Agreement.
(c) The Paying Agent may require the receipt of security satisfactory to it,
whether by way of payment in advance or otherwise, against any liability
or loss which it may incur in complying with the instructions of the
Transferring Finance Parties.
14.6 Responsibility
The Paying Agent is not responsible to any Transferring Finance Party
for the adequacy, accuracy or completeness of:
(a) this Agreement or any other document; or
(b) any statement or information (whether written or oral) made in
or supplied in connection with this Agreement or any other
document.
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14.7 Exclusion of liability
(a) The Paying Agent is not liable or responsible to any Transferring
Finance Party for any action taken or not taken by it in connection with
this Agreement, unless directly caused by its gross negligence or wilful
misconduct.
(b) No Party may take any proceedings against any officer, employee or agent
of the Paying Agent in respect of any claim it might have against the
Paying Agent or in respect of any act or omission of any kind by that
officer, employee or agent in connection with this Agreement. Any
officer, employee or agent of the Paying Agent may rely on this
Subclause and enforce its terms under the Contracts (Rights of Third
Parties) Act 1999.
14.8 Information
(a) The Paying Agent must promptly forward to the person concerned the
original or a copy of any document which is delivered to the Paying
Agent by a Party for that person.
(b) The Paying Agent is not obliged to review or check the adequacy,
accuracy or completeness of any document it forwards to another Party.
(c) Except as provided above, the Paying Agent has no duty:
(i) either initially or on a continuing basis to provide any
Transferring Finance Party with any credit or other information
concerning the risks arising under or in connection with this
Agreement whether coming into its possession before, on or after
the date of this Agreement; or
(ii) to request any certificate or other document from any Party as
to any matter.
(d) In acting as the Paying Agent, the agency division of the Paying Agent
is treated as a separate entity from its other divisions and
departments. Any information acquired by the Paying Agent which, in its
opinion, is acquired by it otherwise than in its capacity as the Paying
Agent may be treated as confidential by the Paying Agent and will not be
treated as information possessed by the Paying Agent in its capacity as
such.
(e) The Paying Agent is not obliged to disclose to any person any
confidential information supplied to it by a member of the Group or the
Purchaser solely for the purpose of evaluating whether any waiver or
amendment is required to any term of this Agreement.
(f) Each of the Guarantor, the Company (on behalf of itself and the other
Obligors), the Note Issuer and the Purchaser irrevocably authorises the
Paying Agent to disclose to the Transferring Finance Parties any
information which, in its opinion, is received by it in its capacity as
the Paying Agent.
14.9 Indemnities
Each Transferring Finance Party shall severally indemnify the Paying
Agent for that Transferring Finance Party's share (based on the
proportion which such Transferring Finance Party's Principal Debt bears
to the Total Principal Debt) of any loss or liability incurred by the
Paying Agent in acting as the Paying Agent, except to the extent that
the loss or liability is caused by the Paying Agent's gross negligence
or wilful misconduct.
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14.10 Compliance
The Paying Agent may refrain from doing anything (including disclosing
any information) which might, in its opinion, constitute a breach of any
law or regulation or be otherwise actionable at the suit of any person,
and may do anything which, in its opinion, is necessary or desirable to
comply with any law or regulation.
14.11 Relationship with Transferring Finance Parties
The Paying Agent may treat each Transferring Finance Party as a
Transferring Finance Party, entitled to payments under this Agreement
until it has received not less than five Business Days' prior notice
from that Transferring Finance Party to the contrary.
15. GUARANTEE AND INDEMNITY
15.1 Guarantee and indemnity
The Guarantor irrevocably and unconditionally:
(a) guarantees to each Transferring Finance Party punctual
performance by the Purchaser of all its obligations under this
Agreement;
(b) undertakes with each Transferring Finance Party that, whenever
the Purchaser does not pay any amount when due under this
Agreement, it must immediately on demand by the Paying Agent pay
that amount as if it were the principal obligor; and
(c) indemnifies each Transferring Finance Party immediately on
demand against any loss or liability suffered by that
Transferring Finance Party if any obligation guaranteed by it is
or becomes unenforceable, invalid or illegal; the amount of the
loss or liability under this indemnity will be equal to the
amount the Transferring Finance Party would otherwise have been
entitled to recover.
15.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by the Purchaser under this Agreement,
regardless of any intermediate payment or discharge in whole or in part.
This guarantee is a guarantee of payment and not of collection.
15.3 Reinstatement
(a) If any discharge (whether in respect of the obligations of the Purchaser
or any security for those obligations or otherwise) or arrangement is
made in whole or in part on the faith of any payment, security or other
disposition which is avoided or must be restored on insolvency,
liquidation or otherwise without limitation, the liability of the
Guarantor under this Clause will continue as if the discharge or
arrangement had not occurred.
(b) Each Transferring Finance Party may concede or compromise any claim that
any payment, security or other disposition is liable to avoidance or
restoration.
15.4 Waiver of defences
The obligations of the Guarantor under this Clause will not be affected
by any act, omission or thing which, but for this provision, would
reduce, release or prejudice any of its obligations
18
under this Clause (whether or not known to it or any Transferring
Finance Party). This includes:
(a) any time or waiver granted to, or composition with, any person;
(b) any release of any person under the terms of any composition or
arrangement;
(c) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any person;
(d) any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to
realise the full value of any security;
(e) any incapacity or lack of power, authority or legal personality
of or dissolution or change in the members or status of any
person;
(f) any amendment (however fundamental) of this Agreement or any
other document or security; or
(g) any unenforceability, illegality, invalidity or non-provability
of any obligation of any person under this Agreement or any
other document or security.
15.5 Immediate recourse
The Guarantor waives any right it may have of first requiring any
Transferring Finance Party (or any trustee or agent on its behalf) to
proceed against or enforce any other right or security or claim payment
from any person before claiming from the Guarantor under this Clause.
15.6 Appropriations
Until all amounts which may be or become payable by the Purchaser under
this Agreement have been irrevocably paid in full, each Transferring
Finance Party (or any trustee or agent on its behalf) may without
affecting the liability of the Guarantor under this Clause:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Transferring Finance Party (or
any trustee or agent on its behalf) in respect of those amounts;
or
(b) apply and enforce them in such manner and order as it sees fit
(whether against those amounts or otherwise); and
(c) hold in an interest-bearing suspense account any moneys received
from the Guarantor or on account of the Guarantor's liability
under this Clause.
15.7 Non-competition
Unless:
(a) all amounts which may be or become payable by the Purchaser
under this Agreement have been irrevocably paid in full; or
(b) the Paying Agent otherwise directs,
19
the Guarantor will not, after a claim has been made or by virtue of any
payment or performance by it under this Clause:
(i) be subrogated to any rights, security or moneys held, received
or receivable by any Transferring Finance Party (or any trustee
or agent on its behalf);
(ii) be entitled to any right of contribution or indemnity in respect
of any payment made or moneys received on account of the
Guarantor's liability under this Clause;
(iii) claim, rank, prove or vote as a creditor of the Purchaser or its
estate in competition with any Transferring Finance Party (or
any trustee or agent on its behalf); or
(iv) receive, claim or have the benefit of any payment, distribution
or security from or on account of the Purchaser, or exercise any
right of set-off as against the Purchaser.
The Guarantor must hold in trust for and immediately pay or transfer to
the Paying Agent for the Transferring Finance Parties any payment or
distribution or benefit of security received by it contrary to this
Clause or in accordance with any directions given by the Paying Agent
under this Clause.
15.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by any
other security now or subsequently held by any Transferring Finance
Party.
16. MISCELLANEOUS
16.1 Set-off and counterclaims
All payments under this Agreement shall be made without set-off or
counterclaim and free and clear of and without liability or withholding
or deduction for or on account of any present or future taxes of
whatever nature.
16.2 Transfer fees
The Purchaser shall not be liable to account for any recordation,
processing, transfer or similar fee payable to the Agent under the
Credit Agreement in connection with the transaction to the Agent on the
date upon which such fee is payable under the Credit Agreement.
16.3 Stamp duty
Stamp duties and other applicable transfer taxes and duties (including
notarial fees) and any costs attributable to the transfer of security
are payable by the Purchaser.
16.4 Breakfunding
No breakfunding compensation shall be paid to the Transferring Finance
Parties even if the Completion Date is not an interest payment date in
respect of the Principal Debt.
20
16.5 Costs and expenses
Without prejudice to any existing arrangements under the Finance
Documents or otherwise, the Obligors shall, on the Completion Date, pay
the out-of-pocket costs and expenses (including legal expenses) of the
Transferring Finance Parties in connection with the preparation,
negotiation and execution of this Agreement and each of the other
documents contemplated herein (the Documentation) except that no fees of
the Steering Committee owing under the Co-ordinators' Engagement Letters
shall become due or payable or be demanded on or before the Completion
Date. The Purchaser shall bear its out-of-pocket costs and expenses
(including legal expenses) in connection with the preparation,
negotiation and execution of the Documentation.
16.6 Acknowledgements and consents
Each Obligor (as evidenced by the Company's execution of this Agreement)
acknowledges (and, to the extent necessary, consents to) the
transactions contemplated by this Agreement.
16.7 Independent investigation
(a) The Purchaser and each Transferring Finance Party acknowledges to the
other that it is a sophisticated buyer or seller (as the case may be)
with respect to the transactions contemplated under this Agreement and
has such information as it deems appropriate under the circumstances
(however obtained), concerning, for example, the business and financial
condition of the Obligors, to make an informed decision regarding the
transactions contemplated under this Agreement. The Purchaser and each
Transferring Finance Party hereby agrees that it has independently made
its own analysis and decision to enter into the transactions
contemplated under this Agreement, based on such information as it has
deemed appropriate under the circumstances, and without reliance on the
Purchaser, any Transferring Finance Party or any other Transferring
Finance Party.
(b) In addition, and except only as otherwise specified in this Agreement,
each Transferring Finance Party does not make, and the Purchaser does
not rely upon, any representation, warranty or condition (express or
implied) about, and each Transferring Finance Party shall have no
liability or responsibility to the Purchaser for any non-performance of
the Finance Documents by any Obligor or the financial condition of any
Obligor.
16.8 No recourse
(a) Each Transferring Finance Party notifies the Purchaser and the Purchaser
acknowledges that, except as otherwise specified in this Agreement:
(i) each Transferring Finance Party shall have no obligation to
repurchase or reacquire all or any part of the Debt from the
Purchaser or to support any losses directly or indirectly
sustained or incurred by the Purchaser for any reason
whatsoever, including the non-performance by any Obligor under
the Finance Documents of its obligations; and
(ii) any rescheduling or renegotiation of the Debt shall be for the
account of, and the responsibility of, the Purchaser, who will
be subject to the rescheduled or renegotiated terms.
21
(b) After the Completion Date no Transferring Finance Party shall have any
recourse to any Debt transferred to the Purchaser under this Agreement
or to any payment made by any Obligor pursuant to the Finance Documents
on or after the Completion Date.
16.9 Information
The Purchaser and each Transferring Finance Party acknowledges that the
other may possess material information not known to it. The Purchaser
and each Transferring Finance Party agrees that the other shall have no
liability with respect to the non-disclosure of any such information
except to the extent that such information renders inaccurate an express
representation made pursuant to this Agreement by the Party possessing
such information.
17. NOTICES
17.1 In writing
(a) Any communication (other than a consent from the Panel) in
connection with this Agreement must be in writing and, unless
otherwise stated, may be given in person, by post or by fax.
(b) Unless it is agreed to the contrary, any consent or agreement
required under this Agreement must be given in writing.
17.2 Contact details
(a) The contact details of the Paying Agent for all notices in connection
with this Agreement are:
Address: Debt Financing, Support and Agency Services, HSBC Bank
plc
Level 17, 8 Canada Square, London E14 5HQ
Fax number: +44 (0)20 7991 4351
Attention: Claudine Todd.
(b) The contact details of the Guarantor and the Purchaser for all notices
in connection with this Agreement are:
Address: 27 Farm Street, London W1J 5RJ
Fax: +44 (0) 20 7499 9125
Attention of: Finance Director/Company Secretary
(c) The contact details of the Company and the Note Issuer for all notices
in connection with this Agreement are:
Address: 121 - 141 Westbourne Terrace, London W2 6JR
Fax number: +44 (0) 20 7706 3820
Attention: Finance Director / Company Secretary.
(d) The contact details for each Transferring Finance Party are as set out
under its signature on the execution pages to this Agreement.
(e) Any Party may change its contact details by giving five Business Days'
notice to the Purchaser and the Paying Agent.
22
(f) Where a Party nominates a particular department or officer to receive a
notice, a notice will not be effective if it fails to specify that
department or officer.
17.3 Effectiveness
(a) Except as provided below, any notice in connection with this Agreement
will be deemed to be given as follows:
(i) if delivered in person, at the time of delivery;
(ii) if posted, five days after being deposited in the post, postage
prepaid, in a correctly addressed envelope; and
(iii) if by fax, when received in legible form.
(b) A communication given under paragraph (a) above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place.
(c) A notice to a Party will only be effective on actual receipt by it.
18. LANGUAGE
Any notice given in connection with this Agreement must be in English.
19. SEVERABILITY
If a term of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that will not affect:
(a) the legality, validity or enforceability in that jurisdiction of
any other term of this Agreement; or
(b) the legality, validity or enforceability in any other
jurisdiction of that or any other term of this Agreement.
20. WAIVERS AND REMEDIES CUMULATIVE
The rights of each 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 exercise or non-exercise of any right is not a waiver of that
right.
21. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties thereto on separate counterparts each of which, when
executed and delivered, shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument.
23
Transmission by fax of an executed counterpart of this Agreement shall
be deemed to constitute due and sufficient delivery of such counterpart.
22. GOVERNING LAW
This Agreement is governed by English law.
23. Enforcement
23.1 JURISDICTION
(a) The English courts have exclusive jurisdiction to settle any dispute in
connection with this Agreement.
(b) The English courts are the most appropriate and convenient courts to
settle any such dispute and each Party waives objection to those courts
on the grounds of inconvenient forum or otherwise in relation to
proceedings in connection with this Agreement.
23.2 Waiver of immunity
Each Party irrevocably and unconditionally:
(a) agrees not to claim any immunity from proceedings brought
against it in relation to this Agreement and to ensure that no
such claim is made on its behalf;
(b) consents generally to the giving of any relief or the issue of
any process in connection with those proceedings; and
(c) waives all rights of immunity in respect of it or its assets.
23.3 Waiver of trial by jury
EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED BY THIS AGREEMENT. THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO TRIAL BY COURT.
AS WITNESS the hands of the authorised signatories of the parties hereto on the
date first appearing above.
24
SCHEDULE 1
TRANSFERRING FINANCE PARTIES
Part 1
Transferring Noteholders Principal Debt
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA $56,062,000
PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY $2,938,000
PRUCO LIFE INSURANCE COMPANY $1,000,000
HARTFORD LIFE INSURANCE COMPANY (PRUDENTIAL $5,000,000
PRIVATE PLACEMENT INVESTORS, L.P., as Investment Advisor)
MOORE U.S. RESTRUCTURING LP $2,500,000
DEUTSCHE BANK AG, LONDON BRANCH $3,000,000
STRATEGIC VALUE MASTER FUND LTD. $7,500,000
Total (indicative as at 16th June, 2003) $78,000,000
25
Part 2
Transferring Banks Principal Debt
CARGILL FINANCIAL MARKETS PLC (pounds)4,869,815.87
HSBC BANK PLC (pounds)15,358,650.06
THE ROYAL BANK OF SCOTLAND PLC (pounds)12,736,441.50
THE BANK OF NEW YORK (pounds)15,358,650.06
ALLIED IRISH BANKS, PLC (pounds)8,116,359.52
CCF SA (pounds)4,869,815.87
DEUTSCHE BANK AG, LONDON (pounds)12,249,048.23
FLEET NATIONAL BANK (pounds)12,736,441.50
GOLDMAN SACHS CREDIT PARTNERS L.P. (pounds)7,055,822.24
LLOYDS TSB BANK PLC (pounds)12,736,441.50
THE GOVERNOR AND COMPANY OF THE BANK OF (pounds)12,736,441.50
SCOTLAND
WESTLB AG, LONDON BRANCH (pounds)11,113,169.68
Total (indicative as at 16th June, 2003, assuming (pounds)129,937,097.53
Overdraft Net Balance is zero)
26
SCHEDULE 2
FORM OF SUBSTITUTION CERTIFICATE
To: HSBC Bank plc (as the successor to HSBC Investment Bank plc)
8 Canada Square
London
E14
Attention: Syndicated Agency
[Date]
Substitution Certificate
------------------------
This Substitution Certificate relates to an Agreement (the Agreement) dated 4th
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 Bank plc (as the successor to 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 Bank plc
(as the successor to 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. Each of the Banks listed in schedule 2 below (together the Existing Banks
and individually an Existing Bank) (a) confirms the accuracy of the summary
of its Commitment and Contribution set out in schedule 1 to this
Substitution Certificate; and (b) requests [ ] (the Substitute) to accept
by way of novation the portion of its Commitment and Contribution specified
in schedule 1 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.
2. The Substitute 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 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], (the
Transfer Date) or 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 the novations effected by this Substitution Certificate
pursuant to and for the purposes of clause 18.3 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:
27
(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 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 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 the 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 not a Qualifying Bank.
5. Execution of this Substitution Certificate by the Substitute 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. The Substitute hereby undertakes to each of the Existing Banks, 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 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:
28
(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 Obligor 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 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.
9. 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 investment.
AS WITNESS the hands of the authorised signatories of the parties hereto on the
date appearing below.
29
Schedule 1
[Parties and numbers to be finalised prior to signing]
Existing Bank Amount of Amount of Portion of
Commitment Contribution Commitment
and
Contribution
(pounds) (pounds) Transferred
Allied Irish Banks, Plc 8,443,020.17 All
CCF SA 5,065,812.27 All
Deutsche Bank AG, London 12,742,037.97 All
Fleet National Bank 13,249,047.45 All
Goldman Sachs Credit Partners L.P. 7,339,799.23 All
HSBC Bank plc 15,976,792.53 All
Lloyds TSB Bank plc 13,249,047.45 All
The Bank of New York 15,976,792.53 All
The Governor and Company of the 13,249,047.45 All
Bank of Scotland
The Royal Bank of Scotland plc 13,249,047.45 All
WestLB AG, London Branch 11,560,443.50 All
Cargill Financial Markets plc 5,065,812.26 All
30
Administrative Details of Substitute
Lending office:
Account for payments:
Telephone:
Telefax:
Attention:
31
Schedule 2
The Existing Banks
ALLIED IRISH BANKS, PLC
CCF SA
CARGILL FINANCIAL MARKETS PLC
DEUTSCHE BANK AG, LONDON
FLEET NATIONAL BANK
GOLDMAN SACHS CREDIT PARTNERS L.P.
HSBC BANK PLC
LLOYDS TSB BANK PLC
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
THE BANK OF NEW YORK
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
THE ROYAL BANK OF SCOTLAND PLC
WESTLB AG, LONDON BRANCH
32
Signatures
The Substitute
WPP NO. 2337 LIMITED
By:
Date:
The Existing Banks
ALLIED IRISH BANKS, PLC
By:
Date:
CCF SA
By:
Date:
CARGILL FINANCIAL MARKETS PLC
By:
Date:
DEUTSCHE BANK AG, LONDON
By:
Date:
FLEET NATIONAL BANK
By:
Date:
33
GOLDMAN SACHS CREDIT PARTNERS L.P.
By:
Date:
HSBC BANK PLC
By:
Date:
LLOYDS TSB BANK PLC
By:
Date:
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
By:
Date:
THE BANK OF NEW YORK
By:
Date:
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By:
Date:
THE ROYAL BANK OF SCOTLAND PLC
By:
Date:
34
WESTLB AG, LONDON BRANCH
By:
Date:
The Agent
HSBC BANK PLC
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
35
SCHEDULE 3
ACCOUNT DETAILS
THE PAYING AGENT
HSBC Bank plc Sort Code 40-05-15
Account Number [57548467]
36
SCHEDULE 4
FORM OF ACCESSION LETTER
To: [ ]
THIS LETTER dated [ ], is supplemental to a debt transfer agreement (the Debt
Transfer Agreement) dated [ ] June, 2003 between, among others, Cordiant
Communications Group plc, Cordiant Finance, Inc., the Transferring Noteholders
described therein, the Transferring Banks described therein, HSBC Bank plc as
Common Security Trustee and Paying Agent, WPP No. 2337 Limited, WPP Group plc
and [ ].
Words and expressions defined in the Debt Transfer Agreement have the same
meaning when used in this letter.
[NAME OF NOTEHOLDER / BANK FINANCE PARTY] hereby agrees with each other person
who is or who becomes a party to the Debt Transfer Agreement that with effect on
and from the date hereof it will be bound by and benefit from the Debt Transfer
Agreement as a *[Noteholder/Bank Finance Party], with the holding /
participation and Commitment specified below, as if it had been party originally
to the Debt Transfer Agreement in that capacity. Its Principal Debt under the
Finance Documents as of the date hereof is US$ / (pounds)[ ].
The address for notices of [ ] for the purposes of Clause 15 (Notices) of the
Debt Transfer Agreement is:
Address: [ ]
Fax Number: [ ]
Attention: [ ]
This letter is governed by English law.
Signed:
..............................................
[Noteholder/Bank Finance Party]
*Delete as applicable
37
SIGNATORIES
Company
CORDIANT COMMUNICATIONS GROUP PLC
By: /s/ ANDREW BOLAND
Note Issuer
CORDIANT FINANCE, INC.
By: /s/ ANDREW BOLAND
Transferring Noteholders
/s/ Paul Price
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
Address: 100 Mulbery Street, Newark, NJ 07102
Fax number: +1 973 802 2333
Attention: Paul Price
/s/ Paul Price
PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY
Address: 100 Mulbery Street, Newark, NJ 07102
Fax number: +1 973 802 2333
Attention: Paul Price
/s/ Paul Price
PRUCO LIFE INSURANCE COMPANY
Address: 100 Mulbery Street, Newark, NJ 07102
Fax number: +1 973 802 2333
Attention: Paul Price
/s/ Paul Price
HARTFORD LIFE INSURANCE COMPANY
By: Prudential Private Placement Investors, L.P.
(as Investment Advisor)
By: Prudential Private Placement Investors, Inc.
(as its General Partner)
Address: 100 Mulbery Street, Newark, NJ 07102
Fax number: +1 973 802 2333
Attention: Paul Price
/s/ JEAN-LOUIS LELOGEAIS
MOORE U.S. RESTRUCTURING LP
Address: 10 East 53rd Street, 33rd Floor, New York, NY 10022
Fax number: +1 212 521 5860
Attention: David Chasen
/s/ JEAN-LOUIS LELOGEAIS
STRATEGIC VALUE MASTER FUND LTD.
Address: 10 East 53rd Street, 33rd Floor, New York, NY 10022
Fax number: +1 212 521 5860
Attention: David Chasen
/s/ L. POWELL /s/ SIMON MULLALY
DEUTSCHE BANK AG, LONDON BRANCH
Address: Winchester House
1 Great Winchester Street
London EC2N 2DB
Fax number:
Attention: L. POWELL/ B. MORISON
Transferring Banks
ALLIED IRISH BANKS, PLC
By: /s/ MICHAEL BARRY
Address: Corporate Banking Britain
St Helen's
1 Undershaft
London EC3A 8AB
Fax number: 00 44 (0) 20 7090 7101
Attention: Michael Barry/Sarah Murtagh
CCF SA
By: /s/ DIRK VAN DORP, Senior Manager, CCF SA
Address: Tour Montparnasse
33 Avenue Du Maine
75755 Paris Cedex 15
France
Fax number: 00 33 (1) 5813 0301
Attention: Dirk Van Dorp
cc Guillaume Rouxel
CCF Montparnasse
00 33 (1) 4321 2990
00 331 5813 8044
CARGILL FINANCIAL MARKETS PLC
By: /s/ JOHN R. S. BRICE
Address: Knowle Hill Park
Fairmile Lane
Cobham
Surrey KT11 2PD
UK
Fax number: 00 44 (0) 1932 576 012
Attention: Greg Belonogoff
DEUTSCHE BANK AG, LONDON
By: /s/ L. POWELL /s/ ROBERT FOULSTON
Address: Winchester House
1 Great Winchester Street
London EC2N 2DB
Fax number: +44 20 7547 2707
Attention: L. Powell / B. Morison
FLEET NATIONAL BANK
By: /s/ G. Christopher Miller, Authorised Officer, Senior Workout Officer
Address: 100 Federal Street
Boston, MA 02110, USA
Fax number: 617-434-4775
Attention: G. Christopher Miller
GOLDMAN SACHS CREDIT PARTNERS L.P.
By: /s/ C TODD
Address: Peters Hill
1 Carter Lane
London EC4V 5ER
Fax number:
Attention:
HSBC BANK PLC
By: /s/ Mark Haines, Senior Manager
Address: Media/Telecoms Group
Level 24
8 Canada Square
London E145HQ
UK
Fax number: 020 7260 4800
Attention: Gary Lee
LLOYDS TSB BANK PLC
By: /s/ A M DENSEM
Address: 2nd Floor
Great Surrey House
203 Blackfriars Road
London SE1 8NH
UK
Fax number: 020 7463 1150
Attention: A M Densem
THE BANK OF NEW YORK
By: /s/ GERALD M. DORKIN, Vice President
Address: Level 48
One Canada Square
London E14 5AL
UK
Fax number: 00 44 (0) 20 7964 6193
Attention: Beatrice DuPont de Rivaltz
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: /s/ ALLAN RAMSAY
Address: Level 7
Bishopsgate Exchange
155 Bishopsgate
London EC2M 3YB
UK
Fax number: 0207-012-9459
Attention: Allan Ramsay
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ IAN ROBERTS
Address: 135 Bishopsgate
London EC2M 3YB
UK
Fax number: 020 7672 0324
Attention: Wendy Renwick
WESTLB AG, LONDON BRANCH
By: /s/ TIM SAI LOUIE
Address: Woolgate Exchange
25 Basinghall Street
London EC2V 5HA
Fax number: 00 44 (0) 20 7020 7620
Attention: Credit Administration
Common Security Trustee
HSBC BANK PLC
By: /s/ C TODD
Address: Level 17
8 Canada Square
London E14 5HQ
Fax number: +44 020 7991 4351
Attention: Debt Finance, Support & Agency Services
Agent
HSBC BANK PLC
By: /s/ C TODD
Address: Level 17
8 Canada Square
London E14 5HQ
Fax number: +44 020 7991 4351
Attention: Debt Finance, Support & Agency Services
Security Trustee
HSBC BANK PLC
By: /s/ C TODD
Address: Level 17
8 Canada Square
London E14 5HQ
Fax number: +44 020 7991 4351
Attention: Debt Finance, Support & Agency Services
Paying Agent
HSBC BANK PLC
By: /s/ C TODD
Address: Level 17
8 Canada Square
London E14 5HQ
Fax number: +44 020 7991 4351
Attention: Debt Finance, Support & Agency Services
Overdraft Bank
HSBC BANK PLC
By: /s/ MARK HAINES
Address: Media / Technology Group
Level 24
8 Canada Square
London E14 5HQ
Fax number: 020 7260 4800
Attention: Gary Lee
Swingline Bank
FLEET NATIONAL BANK
By: /s/ G. Christopher Miller, Authorised Officer, Senior Workout Officer
Address: 100 Federal Street
Boston, MA 02110, USA
Fax number: 617-434-4775
Attention: G. Christopher Miller
Purchaser
WPP NO. 2337 LIMITED
By: /s/ PAUL RICHARDSON
Guarantor
WPP GROUP PLC
By: /s/ PAUL RICHARDSON