DATED 16TH September, 2002
MDP ACQUISITIONS PLC
as Lender
and
MDCP ACQUISITIONS I
as Borrower
---------------------------------------
INTERCOMPANY LOAN AGREEMENT
---------------------------------------
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
INTERNATIONAL
Tower 42
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇
THIS AGREEMENT is made on 16th 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 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 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.
2
"PRIORITY DEED" means the priority agreement dated on or about the date
hereof between, among others, the Lender, the Borrower, Deutsche Bank
AG London, ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇
International as arrangers, the parties thereto as lenders and the
other parties thereto in respect of E2,525,000,000 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;
(c) a Transaction Document or another document is a reference to that
Transaction Document or other document as amended; and
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
3
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 as follows:
(a) Prior to the Applicable Issue Date in respect of an 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 an
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 funded (or any portion thereof)
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 such Cash Pay Loan in
accordance with Section 2.6(d) of the Bridge Facility
4
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 E500,000 in
any twelve month period.
5
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.
6
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 or 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) the
holders of the preferred equity securities in respect of the Bridge
Facilities or 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.
7
LENDER
MDP ACQUISITIONS PLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇
/s/ ▇. ▇'▇▇▇▇▇▇▇
BORROWER
MDCP ACQUISITIONS I
By: /s/ ▇▇▇ ▇▇▇▇▇▇
8
