EXHIBIT 4.6
DEBT TRANSFER AGREEMENT
DATED 26th June, 2003
BETWEEN
Cordiant Communications Group plc
as the Company
-and-
Cordiant Finance, Inc.
as the Note Issuer
-and-
Cerberus Partners, L.P. and Deutsche Bank AG, London
as Transferring Finance Parties
-and-
HSBC Bank plc
as 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.................................................4
3. Payment............................................................5
4. Release............................................................6
5. Co-operation.......................................................6
6. Confidentiality....................................................6
7. Transferring Finance Party representations.........................8
8. Guarantor/Purchaser Representations................................9
9. Changes to the Parties............................................10
10. Default interest..................................................10
11. VAT...............................................................11
12. Guarantee and indemnity...........................................11
13. Miscellaneous.....................................................13
14. Notices...........................................................15
15. Language..........................................................16
16. Severability......................................................16
17. Waivers and remedies cumulative...................................16
18. Counterparts......................................................17
19. Governing law.....................................................17
20. Enforcement.......................................................17
Schedule
1. Transferring Finance Parties......................................18
2. Form of Substitution Certificate..................................20
3. Account Details...................................................26
4. Form of Accession Letter..........................................27
5.
Signatories............................................................28
THIS DEBT TRANSFER AGREEMENT is dated 26th 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) CERBERUS PARTNERS, L.P. as transferring noteholder (the Transferring
Noteholder);
(4) DEUTSCHE BANK AG, LONDON as transferring bank (the Transferring Bank);
(5) HSBC Bank plc as agent bank under the Credit Agreement (in this capacity,
the Agent);
(6) WPP NO. 2337 LIMITED (registered number 4679453) (the Purchaser); and
(7) 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 Bank.
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 (as defined
therein) and the Agent.
Completion Date means 1st July, 2003.
Consideration means the amounts agreed between the Purchaser, the Guarantor
and the Transferring Noteholder in the pricing letter between those parties
dated the same date as this Agreement.
Contribution has the meaning given to the term in the Credit Agreement.
Credit Agreement means the (pound)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.
1
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 of accrued interest under the Finance
Documents owing to the Transferring Finance Parties on the Completion Date.
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 Noteholder.
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.
Party means a party to this 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.
Receiving Account means the account details for the Transferring Finance
Parties as set out in Schedule 3 (Account Details).
2
Security Trust Deed has the meaning given 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.
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 the date
of this Agreement (as reduced by any repayments of such Principal Debt
between the date of this Agreement and the Completion Date).
Transfer means the transfer and novation of the Debt by the Transferring
Finance Parties to the Purchaser in accordance with this Agreement, the
Substitution Certificate and the Finance Documents.
Transferring Finance Party means the Transferring Noteholder or the
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) anauthorisation 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
3
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;
(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;
(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)
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) the Transferring Bank shall deliver to the Purchaser the
Substitution Certificate in respect of its entire participation
in the Debt, duly executed by it;
(ii) the 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
4
(notwithstanding any of the provisions set out in section 15.2
(Transfer and Exchange of Notes) of the Note Purchase Agreement)
with immediate effect on the Completion Date without more;
(iii) the Purchaser shall pay:
(A) (pound)8,597,828.84 of the Consideration to the
Transferring Bank; and
(B) the balance of the Consideration to the Transferring
Noteholder;
(iv) the Purchaser will execute the Substitution Certificate, to take
effect on the Completion Date; and
(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.
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), the Transferring Noteholder
shall surrender to the Purchaser each original Note held by it.
(c) The Transferring Noteholder and the Transferring Bank hereby agree as
between themselves that the payment of the respective amounts referred
to in Clause 2.2(a)(iii) shall:
(i) discharge the Transferring Noteholder from any liability to the
Transferring Bank in respect of the outstanding obligations
under the agreements entered into by the Transferring Noteholder
and the Transferring Bank prior to the date of this Agreement
for the purchase by the Transferring Noteholder by way of
sub-participation of a portion of the Principal Debt; and
(ii) discharge the Transferring Bank from any liability to the
Transferring Noteholder under the sub-participation agreement
dated 9th April, 2003 entered into between them, which agreement
shall be terminated on the Completion Date.
3. PAYMENT
3.1 Place
All payments by the Purchaser or the Guarantor under this Agreement
shall be made to the relevant Receiving Account.
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 payment of any amount by the Purchaser or the Guarantor to the
Receiving Account shall be a good discharge of the obligation to pay
that amount to the Transferring Finance Parties.
5
4. RELEASE
(a) Each Party agrees that, on completion occurring in accordance with
Clause 2.2 (Completion):
(i) 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 Agent, 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.
(c) Each party agrees that the Term (as defined in the Credit Agreement)
ending on 30th June, 2003 for the (pound)9,550,000 revolving credit
advance outstanding under the Credit Agreement shall be extended for one
day until 1st July, 2003 and that the interest rate applicable to that
advance during that extension shall be the same as the rate applicable
to it on the date of this Agreement.
5. 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 10
Business 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 the Completion Date, including
the execution of any transfer, conveyance and assignment and the giving
or making of any notice, order, direction or registration.
6. CONFIDENTIALITY
(a) Each Party must keep confidential this Agreement and the transactions
contemplated by it. However, a Party is entitled to disclose
information:
6
(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 6;
(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 6; 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 6.
(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 Clause 6, 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.
7
7. TRANSFERRING FINANCE PARTY REPRESENTATIONS
7.1 Representations
The representations set out in this Clause are made by each Transferring
Finance Party (on a several basis) to the Purchaser on the date of this
Agreement and the Completion Date.
7.2 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.
7.3 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 Substitution Certificate to which it is a party and the
transactions contemplated by this Agreement.
7.4 Legal validity
This Agreement and the Substitution Certificate 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).
7.5 Non-conflict
The entry into and performance by it of, and the transactions
contemplated by, this Agreement and the Substitution Certificate 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.
7.6 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 Substitution Certificate to
which it is a party have been obtained or effected (as appropriate) and
are in full force and effect.
7.7 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);
8
(b) 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 the date of this Agreement and as at the Completion Date, its
relevant ownership and participations in the principal amount of the
Bank Debt and the Notes is as set out in Schedule 1 (Finance Parties).
8. 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.
8.1 Status
It is a limited liability company, duly incorporated and validly existing
under the laws of the jurisdiction of its incorporation.
8.2 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 Substitution Certificate to which it is a party and the
transactions contemplated by this Agreement.
8.3 Legal validity
This Agreement and the Substitution Certificate to which it is a party
each constitutes its legally valid, binding and enforceable obligation.
8.4 Non-conflict
The entry into and performance by it of, and the transactions
contemplated by, this Agreement and the Substitution Certificate 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.
8.5 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 Substitution Certificate to
which it is a party have been obtained or effected (as appropriate) and
are in full force and effect.
8.6 Securities Act
(a) The Purchaser is purchasing the Debt 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 Debt and the Purchaser acknowledges that the Purchaser is
financially capable of bearing the potential risks associated with
holding its investment in the Debt for an indefinite period of time.
9
(b) The Purchaser has received copies of each of the Finance Documents, has
reviewed the Finance Documents and is, except as provided herein,
acquiring the Debt in accordance and in compliance with the procedural
requirements set out in clause 18.3 (Substitution) of the Credit
Agreement, 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
Debt.
(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.
8.7 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 Debt.
(b) It is able to bear the economic risk of an investment in the Debt, has
adequate means to provide for its current and contingent needs, has no
need for liquidity with respect to an investment in the Debt, and can
afford a complete loss of such investment.
(c) HSBC Bank plc in its capacity as Overdraft Bank, under and as defined in
the Credit Agreement, has given its written consent to the transfer
envisaged by this Agreement, as required by clause 18.3 of the Credit
Agreement.
(d) Fleet National Bank resigned from its position as Swingline Bank, under
and as defined in the Credit Agreement, on 19th June, 2003 and was
succeeded by the Purchaser who, by its signature to this Agreement,
gives the consent to the transfer required of the Swingline Bank under
clause 18.3 of the Credit Agreement.
9. 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).
10. 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.
(b) Interest on an overdue amount is payable at a rate equal to the
aggregate of:
(i) one per cent. per annum; and
10
(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 provision 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.
11. 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.
12. GUARANTEE AND INDEMNITY
12.1 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 either Transferring Finance Party 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.
11
12.2 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.
12.3 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.
12.4 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 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.
12.5 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.
12
12.6 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.
12.7 Non-competition
Unless all amounts which may be or become payable by the Purchaser under
this Agreement have been irrevocably paid in full, the Guarantor will
not, after a claim has been made or by virtue of any payment or
performance by it under this Clause:
(a) 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);
(b) 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;
(c) 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
(d) 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
Transferring Finance Parties any payment or distribution or benefit of security
received by it contrary to this Clause.
12.8 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.
13. Miscellaneous
13.1 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.
13
13.2 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.
13.3 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.
13.4 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.
13.5 Costs and expenses
Each Party shall bear its own out-of-pocket costs and expenses
(including legal expenses) in connection with the preparation,
negotiation and execution of this Agreement and each of the other
documents contemplated herein.
13.6 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.
13.7 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, 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.
13.8 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
14
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.
(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.
13.9 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.
14. NOTICES
14.1 In writing
(a) Any communication 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.
14.2 Contact details
(a) The contact details of the Transferring Noteholder for all notices in
connection with this Agreement are:
Address: 450 Park Avenue, New York, NY10022-2605
Fax number: 001 (212) 891 2100
Attention: Christopher Brody/Juan Garcia
(b) The contact details of the Transferring Bank for all notices in
connection with this Agreement are:
Address: Winchester House, 1 Great Winchester Street, London EC2N
2DB
Fax number: 00 44 (0)20 7547 2707
Attention: L. Powell/B. Morison
(c) 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
15
(d) 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.
(e) Any Party may change its contact details by giving five Business Days'
notice to the Purchaser.
(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.
14.3 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.
15. LANGUAGE
Any notice given in connection with this Agreement must be in English.
16. 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.
17. 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.
16
Delay in exercise or non-exercise of any right is not a waiver of that
right.
18. 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.
Transmission by fax of an executed counterpart of this Agreement shall
be deemed to constitute due and sufficient delivery of such counterpart.
19. GOVERNING LAW
This Agreement is governed by English law.
20. ENFORCEMENT
20.1 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.
20.2 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.
20.3 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.
17
SCHEDULE 1
TRANSFERRING FINANCE PARTIES
Part 1
Transferring Noteholder Principal Debt
CERBERUS PARTNERS, L.P. U.S.$97,000,000
Total (indicative as at the date of this Agreement) U.S.$97,000,000
18
Part 2
Transferring Bank Principal Debt
DEUTSCHE BANK AG, LONDON (pound)20,337,802.26
Total (indicative as at the date of this Agreement) (pound)20,337,802.26
19
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. Deutsche Bank AG, London (the 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 WPP No. 2337 Limited (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:
(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;
20
(b) that it has not relied upon any statement, opinion, forecast or other
representation or warranty made by the Existing Bank, the Arrangers,
the Security Trustee, the Common Security Trustee or the Agent to
induce it to enter into this Substitution Certificate;
(c) that it has made and will continue to make, without reliance on the
Existing Bank or any other Bank Finance Party, and based on such
documents as it considers appropriate, its own appraisal of the
creditworthiness of each Borrower and the Group and its own
independent investigation of the financial condition, prospects and
affairs of each Borrower and the Group in connection with the making
and continuation of the Facilities under the Agreement;
(d) that neither the Existing Bank nor any other Bank Finance Party shall
at any time be deemed to have had or have a duty or responsibility,
either historically, initially or on a continuing basis, to provide
the Substitute with any credit or other information with respect to
any Borrower or any other member of the Group whether coming into its
possession before the making of any Drawing or at any time or times
thereafter, other than (in the case of the Agent) as provided in
clauses 19.3.1 and 19.5.1 of the Agreement
(e) that it has made and will continue to make its own assessment of the
legality, validity, enforceability and sufficiency of the Bank Finance
Documents and the Substitution Certificate and has not relied and will
not rely on the Existing Bank, the Arrangers, the Security Trustee,
the Common Security Trustee or the Agent or any statements made by any
of them in that respect;
(f) that, accordingly, none of the Existing Bank, the Arrangers, the
Security Trustee, the Common Security Trustee and the Agent shall make
any representations or warranties in respect of, or shall have any
liability or responsibility to the 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 the Existing Bank and all other parties to the
Agreement and the Security Trust Deed that it has power to become party to
the Agreement and the Security Trust Deed as a Bank on the terms herein and
therein set out and has taken all necessary steps to authorise execution
and delivery of this Substitution Certificate.
6. The Substitute hereby undertakes to the Existing Bank, the other Bank
Finance Parties, the Borrowers and the other parties to the Agreement and
the Security Trust Deed that it will perform in accordance with 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 the Existing Bank to:
(a) accept any re-transfer from the Substitute of any of the rights,
benefits and/or obligations hereby transferred; or
21
(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.
22
Schedule 1
Existing Bank Amount of Amount of Portion of
Commitment Contribution Commitment
and
Contribution
(pound) (pound) Transferred
DEUTSCHE BANK AG, LONDON 21,197,436.00 20,337,802.26 100%
23
Administrative Details of Substitute
Address: 27 Farm Street
London
W1J 5RJ
Telefax: +44 (0)20 7499 9125
Attention: Finance Director/Company Secretary
24
Signatures
The Substitute
WPP NO. 2337 LIMITED
By:
Date:
The Existing Bank
DEUTSCHE BANK AG, LONDON
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:
25
SCHEDULE 3
ACCOUNT DETAILS
The Transferring Noteholder:
GBP Wiring Instructions:
The Chase Manhattan Bank
Swift: CHASGB2L
Sort Code: 60-92-42
Account Number: 11120607
Sub Account Name: Cerberus Partners, L.P.
Sub Account Number: 318-58085
USD Wiring Instructions:
Bank: Citibank, New York, N.Y.
Account Name: Cerberus Partners, LP
ABA: 021-000-089
Account Number: 37839889
Attn: Juan Garcia
Ref: Cordiant Notes
The Transferring Bank:
Deutsche Bank AG, London
Swift: DEUT GB 2L
Sort Code: 40-50-81
Ref: Cordiant sell back to WPP
26
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 Noteholder
described therein, the Transferring Bank described therein, HSBC Bank plc as
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$/(pound)[ ].
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
27
SIGNATORIES
Company
CORDIANT COMMUNICATIONS GROUP PLC
By: /s/ [illegible]
Note Issuer
CORDIANT FINANCE, INC.
By: /s/ [illegible]
Transferring Noteholder
CERBERUS PARTNERS, L.P.
By: /s/ [illegible]
Transferring Bank
DEUTSCHE BANK AG, LONDON
By: /s/ [illegible]
Agent
HSBC BANK PLC
By: /s/ [illegible]
Purchaser
WPP NO. 2337 LIMITED
By: /s/ [illegible]
Guarantor
WPP GROUP PLC
By: /s/ L.A. MELLMAN