EXHIBIT 10.5
MDP ACQUISITIONS PLC
To: MDCP Acquisitions I
27th September, 2002
Dear Sirs,
INTERCOMPANY LOAN AGREEMENT BETWEEN MDP ACQUISITIONS PLC AS LENDER AND MDCP
ACQUISITIONS I AS BORROWER DATED 16TH SEPTEMBER, 2002 (THE "LOAN AGREEMENT")
Terms defined or used in the Loan Agreement have the same meaning when used in
this letter.
We confirm the agreement between us that the Loan Agreement shall, from the date
of this letter, for valuable consideration, be amended so as to read in its
entirety in the form attached hereto.
Save as expressly amended in this letter the Loan Agreement remains in full
force and effect.
This letter is governed by English law.
Please execute and return the attached copy of this letter to confirm your
agreement to the above. This letter may be executed in any number of
counterparts, each of which shall be an original and all of which when taken
together shall constitute one agreement. Delivery of an executed signature page
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart.
Yours faithfully
MDP ACQUISITIONS PLC
By: /s/ Xxx Xxxxxx
Accepted and agreed:
MDCP ACQUISITIONS I
By: /s/ Xxx Xxxxxx
DATED 16TH SEPTEMBER, 2002
MDP ACQUISITIONS PLC
as Lender
and
MDCP ACQUISITIONS I
as Borrower
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INTERCOMPANY LOAN AGREEMENT
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XXXXXXXX & XXXXX
INTERNATIONAL
Tower 00
00 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: x00 (0)00 0000 0000
xxx.xxxxxxxx.xxx
THIS AGREEMENT is made on 16th September, 2002, and amended on 27th September,
2002, BETWEEN:
(1) MDP ACQUISITIONS PLC, a company registered in Ireland (registered number
357958) (the "LENDER"); and
(2) MDCP ACQUISITIONS I, a company registered in Ireland (registered number
358039) (the "BORROWER").
IT IS AGREED as follows:
1. DEFINITIONS
1.1. In this Agreement:
"ADVANCE" means the principal amount of an advance (as from time to time
reduced by repayment or prepayment or increased by the capitalisation of
interest) made or to be made by the Lender to the Borrower pursuant to
Section 3 hereof.
"ISSUE DATE" means, in respect of an Advance, the date on which any of
the Securities used to fund such Advance (or, to the extent such Advance
has previously been funded by the proceeds of the relevant Bridge
Facilities, used to repay such Bridge Facilities) are issued and, to the
extent the relevant Bridge Facilities have been drawn, the proceeds used
to repay the relevant Bridge Facilities (including any capitalised
interest and other due but unpaid amounts thereon).
"NET PROCEEDS" has the meaning given to it in the Bridge Facility
Agreement.
"PAYMENT DATE" means the earlier of (A) the date on which the Bridge
Facilities are to be repaid in full upon final maturity in accordance
with the terms of the Bridge Facility Agreement (otherwise than out of
the proceeds of the issue of any Securities) and/or, if any of the
Securities have been issued prior to such date, the date on which such
Securities are to be repaid in full or in part, at final maturity in
accordance with the terms of the Securities, and (B) the date on which
the Bridge Facilities or the Securities fall due for payment upon
acceleration or under any mandatory prepayment or repurchase provision
in any case in accordance with the terms of the Bridge Facility
Agreement or the Securities provided that either (i) the amounts due
under the Senior Facility Agreement have then fallen due or have been
declared to be due and payable on acceleration or (ii) 179 days have
elapsed from the date on which the Bridge Agent, the Lender, the Bond
Trustee (as defined in the Priority Deed) or the Exchange Note Trustee
(as defined in the Priority Deed) gave notice to the Senior Agent of the
occurrence of the event of default entitling the Bridge Facilities or
Securities to be so accelerated or (iii) an order for the winding-up
administration, examination or dissolution of the Borrower has been made
or any liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, examiner, administrator or
similar officer has been appointed in respect of the Borrower.
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"PRIORITY DEED" means the priority agreement dated on or about the date
hereof between, among others, the Lender, the Borrower, Deutsche Bank AG
London, Xxxxxxx Xxxxx International and the other lenders under the
Senior Facility Agreement.
"REPAYMENT" includes redemption and vice versa and the words repay,
redeem, repayable, redeemable, repaid and redeemed shall be construed
accordingly.
"SENIOR FACILITY AGREEMENT" means the agreement dated 12th September,
2002 between the Borrower, Deutsche Bank AG London and Xxxxxxx Xxxxx
International as arrangers, the parties thereto as lenders and the other
parties thereto in respect of EURO 2,525,000,000 senior facilities.
1.2. Terms defined in or whose interpretation is provided for in either the
Senior Facility Agreement, or to the extent not defined or provided for
in the Senior Facility Agreement, in the Bridge Facility Agreement,
shall have the same meaning when used in this Agreement unless
separately defined or interpreted in this Agreement.
1.3. In this Agreement, unless the contrary intention appears, a reference
to:
(a) a Clause is a reference to a clause of this Agreement;
(b) words imparting the singular include the plural and vice versa; and
(c) a Transaction Document or another document is a reference to that
Transaction Document or other document as amended.
1.4. Headings and the index are for convenience of reference only and shall
be ignored in the interpretation of this Agreement.
2. PURPOSE
Each Advance may only be used:
(a) to prepay an amount of the Term Loans outstanding under the Senior
Facility Agreement; or
(b) to the extent not so applied in or towards the purposes set out in
clause 3.1(a) to (d) of the Senior Facility Agreement.
3. ADVANCES
3.1. The Lender agrees that it will, promptly upon receipt by the Lender of
the proceeds of each Initial Loan, make an advance to the Borrower in an
aggregate amount equal to the gross amount of such Initial Loan borrowed
by the Lender.
3.2. The Lender agrees that it will, promptly upon receipt by the Lender of
the proceeds of the Securities, to the extent that such proceeds are not
applied in repayment of the Bridge
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Facilities, make an advance to the Borrower in an aggregate amount equal
to the gross amount of such Securities issued by the Lender.
4. INTEREST AND OTHER AMOUNTS
4.1. Interest will accrue on the outstanding principal amount of each Advance
(or any portion thereof) as follows:
(a) Prior to the applicable Issue Date in respect of such Advance (or
any portion thereof):
(i) In the case of an Advance (or any portion thereof) funded
with the proceeds of a Cash Pay Loan, at a rate equal to
the rate of interest payable on such Cash Pay Loan (or the
security into which it converts) in accordance with Section
2.6(a) of the Bridge Facility Agreement (or the applicable
instrument pursuant to which the securities into which it
converts is issued); and
(ii) In the case of an Advance (or any portion thereof) funded
with the proceeds of a PIK Loan, at a rate equal to the
rate of interest and/or dividend payable on such PIK Loan
(or the security into which it converts) in accordance with
Section 2.6(b) of the Bridge Facility Agreement (or the
applicable instrument pursuant to which the securities into
which it converts is issued); and
(b) On and after the applicable Issue Date in respect of such Advance
(or any portion thereof):
(i) In the case of an Advance (or any portion thereof) funded
with the proceeds of a Cash Pay Loan or Cash Pay
Securities, at a rate equal to the coupon payable on the
Cash Pay Securities in accordance with the terms of the
Cash Pay Securities; and
(ii) In the case of an Advance (or any portion thereof) funded
with the proceeds of a PIK Loan or PIK Securities, at a
rate equal to the coupon or dividend payable on the PIK
Securities in accordance with the terms of the PIK
Securities.
4.2. Interest will be payable:
(a) In the case of interest determined in accordance with Clauses
4.1(a)(i) or 4.1(b)(i), 5 Business Days prior to the date the
corresponding interest on the applicable Cash Pay Loan or Cash Pay
Securities (or the securities into which they convert), as the case
may be, is due under the Bridge Facility Agreement or the terms of
the Cash Pay Securities (or the applicable instrument pursuant to
which the securities into which it converts is issued), as the case
may be; provided that, to the extent the Lender elects to pay
interest on the applicable Cash Pay Loan (or the securities into
which they convert) through an increase in the principal amount of
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such Cash Pay Loan in accordance with Section 2.6(d) of the Bridge
Facility Agreement (or the applicable instrument pursuant to which
the securities into which it converts is issued) (such interest,
"PIK CASH PAY INTEREST"), an amount of interest due hereunder equal
to such PIK Cash Pay Interest shall be capitalized and added to the
principal amount of the applicable Advance on the same date such
PIK Cash Pay Interest is capitalized under the Bridge Facility
Agreement (or the applicable instrument pursuant to which the
securities into which it converts is issued), and
(b) In the case of interest determined in accordance with Clauses
4.1(a)(ii) or 4.1(b)(ii), such interest shall be capitalized and
added to the principal amount of the applicable Advance on the same
date that the corresponding interest or dividends on the applicable
PIK Loan or PIK Securities (or the securities into which they
convert), as the case may be, is capitalized under the Bridge
Facility Agreement or the PIK Securities (or the applicable
instrument pursuant to which the securities into which it converts
is issued), as the case may be; provided that, if at any time the
interest or dividends on the applicable PIK Loan or PIK Securities
(or the securities into which they convert) is payable in whole or
in part in cash in accordance with the Bridge Facility Agreement or
the terms of the PIK Securities (or the applicable instrument
pursuant to which the securities into which it converts is issued),
as the case may be (such interest, "CASH PAY PIK INTEREST") and
such payment of interest in cash is permitted by the Senior
Facility Agreement, an amount of interest or dividends due
hereunder equal to such Cash Pay PIK Interest shall be payable 5
Business Days prior to the date such Cash Pay PIK Interest is due
under the Bridge Facility Agreement or the terms of the PIK
Securities (or the applicable instrument pursuant to which the
securities into which it converts is issued), as the case may be;
4.3. Interest on any overdue amount of principal, interest (save to the
extent capitalised in accordance with Section 4.2) or other sum, will be
payable (both before and after judgement) on demand from time to time at
the applicable rate of interest hereunder for the relevant Advance plus
1%, or if such sum is not attributable to any particular Advance, at the
highest rate of interest hereunder plus 1%.
4.4. The Lender may at its discretion sanction a deferral of interest and/or
waive defaults by the Borrower in respect of any Advance. In the case of
such deferral, the payment shall be deferred until such date as the
Lender requires repayment of any deferred interest.
4.5. In addition, the Borrower shall pay to the Lender (A) amounts equal to
any additional amounts payable under applicable gross-up provisions of
the Securities or the Bridge Facilities; (B) amounts equal to default
interest or liquidated damages payments under the Securities or Bridge
Facilities; (C) an amount equal to the amount of the US registration
costs and legal fees incurred in connection with the drawing of the
Bridge Facilities and the issue of the Securities and an amount equal to
the amount of payments due under any registration right agreement
relating to the Bridge Facilities and/or the Securities and (D) an
amount equal to any other payments but not exceeding EURO 500,000 in any
twelve month period.
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5. REPAYMENT
Each Advance (together with all interest accrued thereon, an amount
equal to any premium due on the Securities and other amounts due or
owing to the Lender in connection with such Advance) shall be repayable
by the Borrower on the date falling 5 Business Days before the Payment
Date, in freely available, immediately transferable funds.
6. VOLUNTARY PREPAYMENT
The Borrower may, if permitted by the Priority Deed, prepay the whole or
any part of any Advance borrowed by it (together with interest accrued
thereon, an amount equal to any premium due on the Securities and any
other amounts due or owing to the Lender at such time) at any time
provided an equivalent amount is prepaid in respect of the Bridge
Facilities or the Securities, as the case may be, within five Business
Days of such prepayment.
7. PAYMENTS
7.1. Unless required by law and unless the Borrower and the Lender agree
otherwise, all payments made by the Borrower hereunder shall be made
free and clear of and without any deduction for or on account of any
tax, set-off or counterclaim, and, to the extent any tax deduction is
required by law, the amount of the payment due from the Borrower shall
be increased to an amount which leaves the Lender with an amount equal
to the payment which would have been due if no such deduction had been
required.
7.2. The Borrower shall pay or reimburse any stamp duty, stamp duty reserve
tax or other duties or taxes payable in connection with the execution,
constitution and original issue, completion and initial delivery of this
Agreement.
8. PRIORITY DEED
8.1. Until the Senior Discharge Date (as defined in the Priority Deed), all
payments hereunder shall be subject to the provisions of the Priority
Deed.
8.2. Notwithstanding any other term of this Agreement no payment shall be
made by the Borrower and the Lender shall take no action to recover any
payment otherwise due under this agreement while such payment or action
is not permitted by the Priority Deed.
8.3. The Senior Creditors (as defined in the Priority Deed) may rely on this
clause 8.
9. GENERAL
9.1. This agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same agreement and any
party may enter this agreement by executing a counterpart.
9.2. This Agreement shall be governed by and construed in accordance with
English law.
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9.3. Any dispute arising under or in connection with this Agreement shall be
settled by the courts of England.
9.4. Except as provided for in the Bridge Facility Agreement or the
Securities (as the case may be), the Lender may not assign any of its
rights and obligations under this Agreement whether in whole or in part,
by way of security or otherwise. The Borrower may not assign or transfer
rights or any of its obligations hereunder.
9.5. The Lender and the Borrower may not, without the prior written consent
of the Bridge Agent, the Bond Trustee (as defined in the Priority Deed),
the Exchange Note Trustee (as defined in the Priority Deed) and the
holders of the preferred equity securities in respect of the Bridge
Facilities and the Securities, amend or agree to amend this Agreement.
9.6. The Borrower hereby waives and agrees not to assert any claim that it
may now or hereafter have that the rates of interest specified herein
are usurious or in breach of any similar applicable law.
9.7. Each of the Bridge Agent, the Bond Trustee (as defined in the Priority
Deed), the Exchange Note Trustee (as defined in the Priority Deed) and
the holders of the preferred equity securities in respect of the Bridge
Facilities and the Securities shall have the benefit of and shall be
entitled to enforce the provisions contained in Clauses 6, 9.4, 9.5 and
9.6 of this Agreement.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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LENDER
MDP ACQUISITIONS PLC
By:
BORROWER
MDCP ACQUISITIONS I
By:
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